Columbia City Land Co. v. Ruhl
| Decision Date | 21 April 1914 |
| Citation | 70 Or. 246,141 P. 208 |
| Parties | COLUMBIA CITY LAND CO. v. RUHL. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.
Suit in equity by the Columbia City Land Company against Charles S Ruhl to declare and determine a boundary line between the lands of plaintiff and defendant. From a decree for defendant, plaintiff appeals. Affirmed.
See also, 134 P. 1035.
Loring K. Adams, of Portland (Geo. M. McBride, of St Helens, and Sinnot & Adams, of Portland, on the brief), for appellant. W. B. Dillard, of Eugene (Dillard & Day, of St Helens, on the brief), for respondent.
This is a suit for a decree determining and settling a boundary line between lands of the plaintiff and of the defendant in Columbia county. The complaint alleges: That the plaintiff and the defendant are owners of adjacent lands situated in the county of Columbia, state of Oregon. That there is a controversy and dispute between the plaintiff and the defendant concerning their boundary and dividing line. The property of both the plaintiff and the defendant is situated in the original donation land claim of Abram C. Neer and wife; the property of the defendant being immediately east of and adjoining that of the plaintiff. That the boundary and dividing line between the plaintiff and the defendant, claimed by the plaintiff, is as follows: Beginning at a point in the north line of the F. A. Lamont donation land claim at the foot of the rocky hill known as "Germany Hill," where said north line is intersected by the line indicated by the old fence of John Gum, now deceased, which said beginning point is 1,078.2 feet west from the southeast corner of said donation land claim of Abram C. Neer and wife; running thence northerly, and following the said old fence of John Gum, as shown by said fence and the stakes or hubs lately set along said line; and following the extension of said fence along and below the foot of said hill to a point where the foot of said hill intersects the east boundary line of said Neer claim.
The complaint prays for a decree declaring the boundary line between the plaintiff and the defendant to be as set forth in the complaint and above described. The answer denies each and every allegation of the complaint, except as admitted in said answer.
The defendant admits, by his answer, that he is the owner of all that portion of the south half of the original donation land claim of Abram C. Neer and wife, referred to in the complaint, excepting so much thereof as lies on the hill known as "Germany Hill" and west of the foot or base of a certain basaltic rock extending through said donation land claim, in an almost due north and south direction, and constituting the eastern boundary of said hill, and that the plaintiff claims to own the remainder of the south half of said donation land claim.
The answer further alleges that the western boundary of his said premises, and the boundary line between his said premises and the lands so claimed by the plaintiff, is the face of a certain chain of cliffs or almost perpendicular rock bluffs, which forms the easterly border of that certain ridge known as "Germany Hill," and cuts the south boundary of said donation land claim at a point 1,220.2 feet west of the southeast corner of said claim; thence runs almost due north in an unbroken line to a point on the northeasterly boundary line of said donation land claim, which lies N. 29~> 27' W. 2,884.9 feet from the southeast corner of said claim. And the defendant claims the line of said cliffs or bluffs, and none other, to be the true boundary line between the premises of the defendant and the lands owned by the plaintiff in said county, and, as to said line, the defendant alleges that it has never been lost, obliterated, or confused, except in so far as brush has been allowed to grow up and somewhat obscure the same. The answer prays that the suit be dismissed.
The new matter of the answer was denied by the reply.
The court below made findings and entered a decree in favor of the defendant, and declaring the boundary line to be as claimed by the answer, and not as alleged by the complaint. The plaintiff appeals.
The decision of this case depends upon the meaning of a deed of conveyance made by Abram C. Neer and his wife, Elizabeth, to the late Judge E. D. Shattuck on the 16th day of March, 1868, and recorded on pages 57 and 58 of volume D of the records of deeds of Columbia county on March 28, 1868. By this deed said grantors conveyed to said grantee the following described tract of land:
"All that portion of the donation land claim of Abram C. Neer and Elizabeth Neer which is upon what is known as 'Germany Hill,' westerly of St. Helens, extending from the foot of the bluffs or rocky hill westward to the land of Frank N. Gorick, being the westerly 120 acres, a little more or less of the southerly half of said donation land claim, bounded on the northerly side by land of Jackson Peacher, on the easterly by the foot of the bluff, on the southerly by land of F. A. Lamont, on the westerly by land of F. N. Gorick."
The entire description in a deed should be considered in determining the identity of the land conveyed, and every part ought, if possible, to take effect and be operative. 13 Cyc. 627.
The first thing that attracts the attention in this description is that the grantors conveyed all that part of the claim referred to "which is upon what is known as 'Germany Hill."' This part of the description indicates an intention to convey only land upon said hill. The deed conveys 120 acres, "a little more or less." The land conveyed extends from the foot of the bluff or rocky hill westward to the land of Frank Gorick, and it is bounded on the easterly side by the foot of the bluff. The foot of the bluff is the easterly boundary of the land conveyed. This deed did not convey any land east of the foot of said bluff, and the land conveyed is described as being on Germany Hill.
Abe Neer, a son of the grantors, testifies that he assisted in selling said land to Judge Shattuck, and that they could not get a surveyor to survey the land. He says:
The memory of this witness is not accurate, however, as to that transaction, as he seems to think that he signed the deed, although the deed appears to have been signed by his father and mother only.
A fence was built near the foot of the bluff by John Gum, who owned at that time part of the Neer donation land claim, and the plaintiff claims that this fence was built on the true line between the lands of the plaintiff and of the defendant. This fence was built after the conveyance referred to supra was made to Judge Shattuck.
Hez. Caples testifies that this fence was built there by mutual agreement between his brother and John Gum.
Abe Neer testified that when Judge Shattuck read the deed to them the Judge said:
S. A. Miles, an old resident of Columbia county, was a witness for the plaintiff. He was administrator of the estate of John Gum, and was familiar with Gum's lands. Mr. Miles testified that there was a fence there near the bluff of Germany Hill, running north and south, and, speaking of the location of this fence, he says:
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