Carlyle v. Sloan

• Decision Date: 08 February 1904
• Citation: 44 Or. 357,75 P. 217
• Parties: CARLYLE v. SLOAN et al. [*]
• Court: Oregon Supreme Court

75 P. 217

44 Or. 357

CARLYLE v. SLOAN et al. ^[*]

Supreme Court of Oregon

February 8, 1904

Appeal from Circuit Court, Clatsop County; Thomas A. McBride, Judge.

Suit by Clara S. Carlyle against Katherine E. Sloan and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This is a suit to remove a cloud from title and to enjoin the defendants from trespassing upon or asserting any claim to certain real property. In 1898 Thomas D. Honeyman owned a tract of land in Clatsop county, which he laid out and platted into lots, blocks, and streets, dedicating the same as "Ocean Grove Annex." This tract was about 208 feet wide north and south, and from 1,000 to 1,100 feet long east and west, and was bounded on the east by the Necanicum river and on the west by the Pacific Ocean. It was laid out with one street extending east and west and one north and south, making four blocks of ten lots each. The lots extended through the block, and were numbered from 1 to 10 respectively, beginning at the east end of the block. The tide land west of Honeyman's property was owned by E.M Grimes. A surveyor employed to lay out the town was directed to include therein all of Honeyman's property, but supposing that Grimes' tide land extended to the government meander line, he adopted that as the west boundary of the tract, thereby leaving a strip of land about 100 feet wide between high-water mark and the west line of blocks 2 and 3 as actually surveyed and laid out. The plat of the town as made by the surveyor does not show the strip of land referred to, but represents the ocean as the west boundary of the blocks 2 and 3. The description in the dedication states that the north line of the land platted extends "west to the Pacific Ocean," and the west line runs "southerly with the meanderings of said ocean." The lots shown on the plat are 40 by 90 feet in size, except the fractional ones along the river on the east and the ocean on the west. The width of the lots along the river is not shown on the plan, but the north line of lot 10 in block 2 on the ocean is stated to be 38 feet, and the south line of lot 10 in block 3 is 91.18 feet. About the time the property was laid out and platted Honeyman appointed Charles K. Henry his agent for its sale. Henry caused a plat or map to be made for exhibition to intending purchasers, which shows the property to be bounded on the west by the ocean, and, so far as any question in this case is concerned, is the same as the one made and filed by Honeyman, except that the two lots fronting the ocean are shown to be relatively much wider than on the original, and considerably wider than the figures on either map would indicate. In 1896 the plaintiff and her sister Mrs. Carlyle, purchased of Henry, as agent for Honeyman, two lots, upon which they constructed a summer boarding house. Henry thereafter sold some of the lots in blocks 2 and 3 to other persons, and in August, 1900, sold to the plaintiff the remainder of the property in the town, consisting of about 27 lots, including those fronting and abutting upon the ocean. She immediately went into possession, and subsequently paid the purchase price, and received a deed from Honeyman describing the property as certain blocks and lots in Ocean Grove Annex, "according to the recorded plat thereof in the office of the recorder of conveyances for said Clatsop county." Some time afterward, during negotiations with Grimes for the purchase of the tide land in front of Ocean Grove Annex, Henry learned that it was not true that the town extended to the ocean, as indicated by the map used by him in the sale of the property to the plaintiff, and in reliance upon which plaintiff purchased, but that Honeyman still owned a strip about 100 feet wide between the west line of blocks 2 and 3 and the ocean. He thereupon sought to purchase the same from Honeyman, who, being assured by him that it was not wanted by the plaintiff, sold and conveyed it by deed to the defendant Sloan at his request. Thereafter, as the agent and representative of Mrs. Sloan, he attempted to take possession of the property and construct a fence thereon, and this suit was brought. The complaint, after describing the location of the property, the making and dedication of the map or plat thereof by Honeyman, the sale of the lots fronting on the ocean and other property to plaintiff, avers that during the negotiations for the sale Henry represented to her and "to her agent in the purchase of said property that said lot 10 of said block 2 and said lot 10 of said block 3 fronted upon and extended to the Pacific Ocean, and said Charles K. Henry, acting as such agent, produced and showed to plaintiff and to her agent in the purchase of said lots and blocks maps and plats of Ocean Grove Annex, whereon said lots were shown to front upon and to extend to, and as being bounded on the west by, the Pacific Ocean, and represented to plaintiff and to her said agent that said maps and plats were correct maps and plats of said Ocean Grove Annex; all of which representations were believed and relied upon by plaintiff in making the said purchase of said lots and blocks, and was an inducement for plaintiff to purchase said lots and blocks." The answer admits the platting of the land by Honeyman, the agency of Henry, and the sale to plaintiff, but denies the representations alleged in the complaint, and for an affirmative defense avers, in substance, that at the time the purchase was made the plaintiff was shown the property, and made an examination thereof; that the stakes set by the surveyor indicating the corners of the lots were then in place and visible; that such stakes showed the line of blocks 2 and 3 to be 120 feet east of the highwater mark of the Pacific Ocean; that at the time of the purchase the plaintiff and her agent well knew and admitted that the lots did not extend to or abut upon the ocean, but knew that there was a tract of land lying between the west line thereof and the ocean, which was not included within the boundaries of Ocean Grove Annex, and was not intended to be included in the sale to the plaintiff. The reply put in issue the allegations of new matter in the answer, and upon the trial a decree was rendered in favor of the plaintiff.

W.E. Thomas and Otto J. Kraemer, for appellants.

Charles H. Carey, for respondent.

BEAN J. (after stating the facts).

It appears from the evidence to be practically undisputed that at the time of the sale to the plaintiff of the then remaining property in Ocean Grove Annex it was understood by all parties that it extended to and was bounded on the west by the ocean. Honeyman says that he supposed that lots 10 in block 2 and 10 in block 3 extended to the west line of the property owned by him; that he did not know there was any land between them and high-water mark; that he intended to sell and supposed he had sold to the plaintiff all the land then owned by him; that he thought the figures on the plat indicating the size of the fractional lots fronting the ocean were sufficient to cover the space between their east line and the ocean, but did not consider the figures very material; that after the sale to the plaintiff Henry requested him to join in a deed with Grimes for the ocean frontage, in which he then had an interest, but he declined to do so because it was understood that purchasers of lots in Ocean Grove Annex should have the right to use the beach; that later Henry advised him, to his surprise, that the property he desired to purchase did not belong to Grimes, but to him; that he supposed the surveyor had laid out all the land to which he was entitled in lots and blocks, and therefore he would not make or execute the deed as requested by Henry; that he supposed the property Henry wanted would go to the plaintiff under her purchase; that he asked Henry about it, and Henry afterward told him that he had seen the plaintiff, and that she did not want the property; that he thereupon, at Henry's request, made a deed conveying to the defendant Sloan whatever property he might own between the west line of blocks 2 and 3 and the ocean for the consideration of $100; that he did not know Mrs. Sloan, and never had any conversation with her.

A.C. Emmons testifies that Henry prepared a deed for Honeyman to execute, describing the strip of land in controversy by metes and bounds, but that Honeyman refused to sign it because he was not sure that he owned any such property; that he (the witness) explained the matter to Henry, and himself prepared a deed, the description of which was so worded as to convey whatever land, if any, Honeyman had, and, if he had none, the description would simply follow the west line of blocks 2 and 3 and return on the same.

Mrs Carlyle, who was the agent of the plaintiff in making the purchase, and who transacted all the business in connection therewith, testifies that early in 1900 Henry requested her to buy all the property then...