Cody v. Black
| Decision Date | 14 September 1920 |
| Citation | 192 P. 282,97 Or. 343 |
| Parties | CODY v. BLACK. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Douglas County; J. W. Hamilton, Judge.
On rehearing. Denied.
For former opinion, see 191 P. 319.
O. P. Coshow, of Roseburg, for appellant.
Rice & Orcutt, of Roseburg, for respondent.
The sole plaint of the defendant's petition for rehearing is that we were wrong in disregarding his first assignment of error, reading thus:
"The court erred in overruling appellant's objections to the testimony of the witness Frear and the admission into the evidence of the case of the plat made by said Frear showing the result of his survey of the premises involved."
It will be recalled that this witness, at the time he testified, was a deputy county surveyor, and gave an oral account in great detail, as such witness, of how he went upon the ground equipped with a light mountain transit, found the original government monuments marking the northwest, the northeast and the southeast corners of the section in which lie the premises in dispute, as well as the original quarter corners on the north and east boundaries of the section and from them, together with other original corners in the vicinity relocated the southwest corner and the quarter corner on the west line of the section, from which latter point he ran a straight line to the quarter corner on the east side of the section.
It is conceded that, wherever the true line is which runs from one of these quarter corners to the other, it constitutes the north boundary of the plaintiff's land, for the possession of which he instituted this action. As illustrative of his testimony, Frear produced a plat of the survey he had made, and the same was admitted in evidence. He explained orally the various steps taken by him in ascertaining the lost southwest corner of the section, and how he determined the location of the quarter corner on the west side, from which to run the direct line to the corresponding corner on the east side. He avowed that he ran his lines by the sun, using his instrument as a solar compass, and took no account of the variation of the magnetic needle, because none was used in the work.
Section 2976, L. O. L., reads thus:
"No surveys or resurveys hereafter made by any person except the county surveyor or his deputy, unless attested by two competent surveyors, shall be considered legal evidence in any court within this state, except such surveys as are made by the authority of the United States, the state of Oregon, or by mutual consent of the parties."
By section 2978 the county surveyor is required to keep an official record of all surveys, consisting of a narrative of each survey, giving with other data "the length and bearing of the lines, with the variation of the magnetic needle at which they were run," etc. According to Sommer v. Compton, 52 Or. 173, 96 P. 124 1065, it is this record which constitutes the "survey or resurvey" mentioned in section 2976. In that case a private...
To continue reading
Request your trial