Buell et Ux. v. Mathes et Ux.
| Decision Date | 15 September 1948 |
| Parties | BUELL ET UX. <I>v.</I> MATHES ET UX. |
| Court | Oregon Supreme Court |
1. An "assignment of error" and a "proposition of law" are not synonymous, the former being a formal complaint of some action of the trial court, and the latter merely setting forth reasons why trial court's action is erroneous. Rules of Supreme Court, rule 13.
See Words and Phrases, Permanent Edition, for all other definitions of "Proposition of law" and "Assignment of error".
Appeal and error — Assignment of error — Trial court
2. An "assignment of error" is an indictment of something which occurred in the trial court, and which the appellant claims renders the challenged decree or judgment reversible. Rules of Supreme Court, rule 13.
Appeal and error — Assignments of error — No rulings
3. Alleged assignments of error which mentioned no rulings made by the trial judge, were not "assignments of error" within meaning of Supreme Court rule. Rules of Supreme Court, rule 13.
Appeal and error — Proposition of law — Assignment of error
4. Alleged assignment of error, which was termed a "proposition of law", but which referred to a ruling by the trial court, was deemed an "assignment of error" within meaning of Supreme Court Rule. Rules of Supreme Court, rule 13.
Appeal and error — Assignments of error — Proposition of law
5. Where appellants' brief contained a useful statement concerning controversy, and apparently good review of the pleadings, and an assignment of error, brief would not be stricken from the record, on ground that it did not present any assignments of error as required by Supreme Court Rule, though the only assignment of error was termed a "proposition of law". Rules of Supreme Court, rules 2, 13.
Courts — Ruling that brief contained one assignment of error — Law of case
6. The Supreme Court's ruling that appellant's brief contained one assignment of error and hence could not be stricken from record, on respondents' motion, as presenting no assignments of error, is law of case, and court will confine its attention to such assignment, in absence of application by appellants to assign any other or different error after decision on motion. Rules of the Supreme Court, rule 2.
Deeds — Exception — Retain title
7. A bargain and sale deed, excepting from tract conveyed "a strip of land 10 feet in width, adjoining on the northwest and parallel with above described center line of the roadway", previously described as southeasterly boundary of tract, retained fee title to 10-foot wide strip of roadway adjoining its center line one northwesterly side thereof and did not relate to roadway adjoining northwest boundry of tract, so that grantee and his successors in title never received fee in northwest ten feet strip of roadway.
Boundaries — Statute — Declaratory of common law — Land — Highway — Grantor's intent
8. The statute providing that deed describing a road as boundary of land conveyed includes grantor's rights to middle of road in conveyance, unless road is held under another title, is merely declaratory of common law, under which, where land described by metes and bounds abuts on, or is described as bounded by, highway, or where lots are sold with reference to plat showing highway as boundary, grantee is presumed to take fee to center of highway, if owned by grantor, but, in determining grantors' intent, court will consider all circumstances, viewing both conveyance and local situation as it appears from evidence. O.C.L.A. § 70-111.
Boundaries — Intent of parties — Shown by deed
9. Whether deed to land abutting on highway conveys fee to center thereof must be determined by parties' intention as shown by deed, considering their relations and circumstances surrounding transactions.
Deeds — Adjoining tracts — Conveyed same month — Construed together — Private road between tracts
10. Deeds conveying two adjoining tracts of land during same month in conformity with earlier contract for grantors' sale of tracts to grantee must be construed together in determining whether grantee took fee in private road between tracts, though deeds bore different dates three weeks apart.
Boundaries — Presumption — Not to convey title to center line of private way
11. A presumption of grantors' intention not to convey fee title to center line of private way, described as boundary of tract conveyed, is more readily indicated than in case of public way.
Injunction — Use — Private roadway — Adjoining land
12. In suit to enjoin defendants from using private roadway extending from their lands to highway over plaintiffs' adjoining lands, evidence supported trial court's finding that plaintiffs owned no part of fee in roadway, so that defendants had right to use way.
Injunction — Answer failed to allege plaintiffs' threat to invade defendants' rights — Complaint sufficiently advised court of threatened interference
13. In suit to enjoin defendants from using private roadway from their lands to highway over plaintiffs' adjoining lands, defendants' failure to allege in answer that plaintiffs were threatening to invade defendants' rights in such road did not preclude court from giving defendants affirmative relief by enjoining plaintiffs from interfering with defendants' use of roadway, as complaint sufficiently advised court of threatened interference with such use.
4 C.J.S., Appeal and Error, § 1322
11 C.J.S., Boundaries, § 35
3 Am. Jur., 330 et seq
8 Am. Jur., 781
123 A.L.R., 542.
Appeal from Circuit Court, Jackson County.
George M. Roberts, and G.W. Kellington, both of Medford, for motion.
Hugh B. Collins, of Medford, contra.
Before ROSSMAN, Chief Justice, and LUSK, BELT, KELLY, BAILEY, BRAND and HAY, Justices.
Suit for injunction by Merton G. Buel and Mae J. Buel against Clarence Mathes and Margaret Mathes. From a decree for the defendants, the plaintiffs appeal. The defendants move to strike plaintiffs' brief from the record, on ground that brief did not comply with rule of Supreme Court.
MOTION DENIED.
Appellants' brief does not employ the term "assignment of error." It sets forth fifteen "propositions of law." Only one of them mentions a ruling made by the trial judge. The proceeding which resulted in the decree challenged by the appellants was equitable. The prayer of the complaint sought an injunction.
Rule 2 of this court says:
"No alleged error of the circuit court will be considered by this court unless regularly presented in the assignments of error contained in the appellant's opening brief, except that * * *."
Rule 13 provides:
Going on, Rule 13 sets forth illustrations showing the manner in which the appellant should single out the error which he claims the circuit court committed.
One of the propositions of law submitted by appellants' brief follows:
It will be observed that the proposition does not indicate whether or not it was submitted to the trial judge. If it was submitted, the proposition fails to indicate what position the court took in regard to it; in short, it fails to claim or assign error.
1. The terms "proposition" and "assignment of error" are not synonymous. According to 4 C.J.S., Appeal and Error, p. 1716, § 1217:
"An assignment of error is distinguishable from a proposition in that the former is a formal complaint of some action of the trial court, while the latter merely sets forth the reasons why such action is erroneous."
2. The function of an assignment of error, as the term itself indicates, is to assign or claim error. An assignment of error is an indictment of something which occurred in the trial court and which the appellant claims renders the challenged decree or judgment reversible. Every assignment of error must designate a purported irregularity or a purportedly erroneous ruling and attribute error to it. If all of the assignments of error were written upon a single sheet of paper they would be, in effect, a complaint or a declaration in this court made by the appellant. The respondent, by filing his answering brief, thus presents the issues for our attention.
This court from the earliest of times has enforced rules which required assignments of error to be specific. For instance, in State of Oregon v. McKinnon, 8 Or. 485, which was a...
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...principles. See General Laws of Oregon, Civ. Code, ch. X, title I, § 845 pp. 358–59 (Deady ed.1845–1864); Buel et ux. v. Mathes et ux., 186 Or. 160, 185, 205 P.2d 551 (1949). The Supreme Court has held that the presumption in ORS 93.310(4) applies whenever the conveyance describes property ......
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