Dice v. McCauley

• Decision Date: 17 April 1894
• Citation: 36 P. 530,25 Or. 469
• Parties: DICE v. McCAULEY et al.
• Court: Oregon Supreme Court

36 P. 530

25 Or. 469

DICE v. McCAULEY et al.

Supreme Court of Oregon

April 17, 1894

Appeal from circuit court, Polk county; George H. Burnett, Judge.

Action by Minerva Ann Dice against Mary E. McCauley and others for possession of land. Nonsuit granted, and plaintiff appeals. Reversed.

R.P. Boise and W.H. Holmes, for appellant.

W.S McFadden and J.J. Daly, for respondents.

BEAN J.

This is an action to recover possession of a certain portion of the north half of the donation land claim of E.C Dice and wife, bounded, as described in the complaint, on the west by the Oregon & California Railroad Company's right of way strip, on the east by the east line of the donation claim, on the south by a line running east and west, dividing the claim into equal parts, and on the north by "a line beginning at the west margin of a certain slough on said claim, and abutting the land now owned by one Dove in said claim; thence running south, eighty-eight degrees west, at a distance of two chains north of the old dwelling house situate on said claim; thence westerly along and following the center of a certain turning row and roadway, following the said center of said turning row and roadway to the east boundary line of one Rogers' land in said donation claim." The answer denied plaintiff's ownership and right to the possession, and for an affirmative defense averred (1) that the line described in the complaint as the north line of the tract in dispute, and which is particularly set out in the answer in the exact language of the complaint, was in 1869 established and located by the plaintiff and her husband as an agreed dividing line between the north half of the claim, which belonged to the plaintiff and the south half thereof, which belonged to her husband the predecessor in interest of the defendant; and (2) that defendant and her predecessors in interest are now, and have been for more than 10 years last past, in the open, exclusive, and adverse possession of all of that portion of the donation claim lying south of such line, and that plaintiff has not been in possession thereof. The allegations of the answer were denied by the reply, and upon the trial the court sustained a motion by defendant for a nonsuit, on the ground that the plaintiff had not proven a cause sufficient to the submitted to a jury, and this is the only question on this appeal.

To sustain the issues on her part, the plaintiff, after...