Egan v. Finney
| Decision Date | 20 April 1903 |
| Citation | 42 Or. 599,72 P. 133 |
| Parties | EGAN v. FINNEY. [*] |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Marion County; R.P. Boise, Judge.
Action by James Finney against William H. Egan. From a judgment for plaintiff, defendant appeals. Affirmed.
This is a suit to stay proceedings in an action at law and to determine the boundary between certain lands. The plaintiff is the owner of the northern part of the Lemmon donation land claim in Marion county, which is bounded on the north by the Albright donation land claim, owned by the defendant. In June, 1887, John Newsome, then the county surveyor of said county, at the request of the parties hereto, surveyed said boundary, and set a stone at the southeast corner of the Albright claim, found to be at the end of an old fence which coincided with the line. B.B. Herrick, a subsequent county surveyor of said county, on August 26, 1901, at Egan's request, and in pursuance of a notice served upon Finney resurveyed said line, and located it at the southeast corner of the Albright claim 31 links, and at a point north, 78 degrees west, 78.25 chains, on the township line, 17 links north of said fence. The plaintiff having built a fence on a part of the line so surveyed by Herrick, beginning at the eastern boundary of the Albright claim, the defendant commenced an action against Egan to recover the possession of the premises inclosed by the new fence, whereupon the latter after having filed an answer in said action, instituted this suit, in the nature of a cross-bill, in which he alleges that ever since he and the defendant have been the owners of said claims it was understood and agreed between them that the boundary thereof was inaccurate and unknown, and would require a survey to determine its location; that said boundary was never correctly located until surveyed by Herrick in pursuance of an agreement for the resurvey thereof, entered into between the parties hereto; and that the defendant was present during the location of said line and acquiesced in its establishment. The defendant, having denied the material allegations of the complaint, alleges as a first separate defense that for more than 10 years prior to Herrick's survey he had been in the actual, visible exclusive, hostile, and continuous possession of the disputed premises, claiming to be the owner thereof in fee. For a further defense it is alleged that the plaintiff acquiesced in the boundary established by Newsome, and that the parties hereto and their predecessors in interest for more than 30 years prior to such survey had recognized and acknowledged the line of the old fence as the true boundary between said donation land claims. The reply having denied the allegations of new matter in the answer, a trial was had, resulting in a decree establishing the line of said old fence as the boundary, and perpetually enjoining plaintiff from asserting any claim to the premises in dispute, from which decree he appeals. The defendant, having secured an order requiring the attendance of certain witnesses residing out of said county, and more than 20 miles from the place of trial therein, filed a cost bill, claiming double fees and mileage for their attendance and expenses incurred by the sheriff in notifying them by telegraph. The clerk allowed the costs as claimed, but upon a motion to retax them the court awarded single fees and mileage for only 20 miles each way for the witness who attended in pursuance of said order, and disallowed the claim for expenses paid to the telegraph company, and from such retaxation the defendant appeals.
W.H. Holmes and W.M. Kaiser, for appellant.
George G. Bingham, John A. Carson, and P.H. D'Arcy, for respondent.
MOORE C.J. (after stating the facts).
The testimony shows that in 1849, a line having been run by a local surveyor to determine the boundary of what were afterwards designated as the Lemmon and Albright donation land claims, a fence was built part way thereon, commencing at the southeast corner of the latter claim; but thereafter the surveyor general of Oregon, having resurveyed said claims, located the boundary between them about eight links further north, whereupon the fence was rebuilt upon the line thus established. In locating this boundary the surveyor general set a stake and raised a mound of earth at the southeast corner of the Albright claim, and when Newsome resurveyed the line in 1887 he placed a stone at this point, which has ever since remained as a monument to mark the boundary. We think the testimony shows that the line so run by Newsome at the request of the plaintiff and defendant re-established the line as originally run by the surveyor general. The partition fence was rebuilt soon after this survey was completed. The owners of these donation land claims must then have known where the boundary was located, and the fact that the line of this fence remained unchanged for more than 50 years is a circumstance tending to show that it was built on the boundary. In consequence of a controversy having arisen between the parties hereto concerning the parts of such fence which each should maintain, respectively, arbitrators were appointed, who, having determined the matter, each party thereafter kept in repair the part of the partition fence assigned to him, thus showing that Egan acquiesced in the Newsome line. We think the preponderance of the testimony clearly shows that the boundary, as established by the surveyor general, was correctly retraced by Newsome; that Egan, for more than 10 years after the latter survey was completed, acquiesced therein; and that Finney for more than 10 years held possession of the land to the line of the old fence, claiming to be the owner thereof in fee.
It is maintained by plaintiff's counsel, however, that Herrick's survey having been made in compliance with the statute prescribing the mode of settling controversies of this character, Finney, having taken no appeal from the action of the county surveyor in locating the boundary, is concluded thereby, and hence the court erred in rendering the decree of which they complain. The statute in question, so far as relevant, is as follows: B. & C. Comp. § 4907. "An acknowledgment in writing, or the voluntary appearance of a person...
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...article. In fact, they would be included in the category of those who are 'alarmed' over the radio repair racket. In Egan v. Finney, 42 Or. 599, 603, 72 P. 133, 135, this court cited Smith v. Forrest, 49 N.N. 230, in which 'establish' was defined as follows: "The ordinary meaning of the wor......
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Deal v. United States
...doubtless taken from section 818, Oregon Laws. The Oregon statute has been construed by the Supreme Court of that state in Egan v. Finney, 72 P. 133, 42 Or. 599, 606, and Kohlhagen v. Cardwell, 184 P. 261, 93 Or. 610, 620-622, 8 A. L. R. 11. It is held that the adverse party is not entitled......
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Longview Fibre Co. v. Johnston
...That section and the two next succeeding lay down the procedure to be followed by the county surveyor in such cases. In Egan v. Finney, 42 Or. 599, 603, 72 P. 133, 135, it was held that such statutory provisions are applicable only in cases where the location of the boundary of real propert......
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Kohlhagen v. Cardwell
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