Elwert v. Marley

• Decision Date: 09 February 1909
• Parties: ELWERT v. MARLEY et al.
• Court: Oregon Supreme Court

99 P. 887

53 Or. 591

ELWERT v. MARLEY et al.

Supreme Court of Oregon

February 9, 1909

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Suit by Carrie M. Elwert against P.H. Marley and others. Judgment for plaintiff, and defendants appeal. On motion to dismiss. Granted.

This suit was brought by Carrie M. Elwert against P.H. Marley H.E. Noble, and J. Olsen to restrain them from interfering with, or making use of, certain alleged wharfage rights on the Willamette river, alleged to be appurtenant to and abutting upon lot 5, block 2, East Portland, Multnomah county, and to belong to the plaintiff as owner of said lot and to adjudicate and determine any claim of title thereto asserted by the defendants adversely to plaintiff's alleged rights. The answer denies that the wharfage rights in dispute are appurtenant to lot 5, block 2, and therefore defendants deny plaintiff's alleged rights. The ownership of lot 5 is admitted to be in plaintiff, and for an affirmative defense a fee-simple title is alleged to be in defendant Noble to a fractional lot 4 of block 2, alleged to exist and to be situate between the west line of lot 5 and ordinary high-water line, and therefore it is claimed that the wharfage rights in dispute are appurtenant to such fractional lot 4, and not to lot 5, and belong to Noble, who acquired his title from Marley. It is further alleged that Noble's title is "subject only to a right to purchase in the defendant J. Olsen," and that "under and by virtue of the aforesaid contract with the defendant H.E. Noble, the defendant J. Olsen is, and at the commencement of this suit, and for a long time prior thereto was, in the actual physical possession of said real property and of the whole thereof." This constitutes the only right claimed by Olsen. Other defenses, not material to be stated, were also included. The reply put at issue the new matter of the answer, and upon a trial thereof of the court found for the plaintiff, and enjoined the defendants from obstructing, disturbing, or interfering with plaintiff's rights of wharfage adjudged to be appurtenant to said lot 5 Marley and Noble were requested by Olsen to join with him in an appeal from the decree, but they refused, and the latter claiming that his rights were joint with, and subject to, the rights of his codefendants, appealed, joining in the notice with himself Marley and Noble as appellants over their protest, all of which facts he has recited in his notice.

Geo. S. Shepard, for appellants.

E.B. Seabrook, for respondent.

SLATER C. (after stating the facts as above).

Plaintiff moves to dismiss the appeal on the ground that, subsequent to the rendition of the decree, and before the appeal, Olsen took from M.W. Parelius, who is plaintiff's grantee, a lease of the premises in dispute, thereby recognizing and acknowledging the validity of the decree, and estopping himself from further contesting the title and right to the enjoyment of the premises by plaintiff and those in privity with her. It appears from the affidavits of Parelius in support of the motion, and from Olsen's in answer thereto and the former's reply, that on August 21, 1906, which was after the cause had been submitted, Parelius received from plaintiff a conveyance of lot 5 and the wharfage rights claimed to be appurtenant thereto, in pursuance of a contract of purchase entered into between them prior to the origin of the suit; that the deed was recorded, of which Olsen had knowledge; that on April 26, 1907, and after the entry of decree, Olsen entered into a written contract of lease with Parelius respecting the property rights in dispute. The contract is mutual in its covenants, and was executed by both parties under seal. By its terms Parelius, for the consideration of $2 per month, to be paid by Olsen, leased to the latter the right and privilege of mooring and keeping for two months a certain scow or houseboat owned by him upon certain premises, described as being "between ordinary high-water mark in the Willamette river and the established harbor line of said river and abutting upon lot 5 in block 2 in East Portland," etc being the identical property and rights in litigation herein. In consideration of the lease Olsen therein agreed to pay the monthly rent in advance, beginning on May 1, 1907, and that at "the expiration of said term he will quit, vacate, and surrender up said premises to Parelius." It is stated in the latter's affidavit that one month's rent was paid. This is denied by Olsen; but it appears to be...