Griffith v. Hanford

• Decision Date: 15 September 1942
• Parties: GRIFFITH ET AL. <I>v.</I> HANFORD ET AL.
• Court: Oregon Supreme Court

169 Or. 351

128 P.2d 947

GRIFFITH ET AL.

v. HANFORD ET AL.

Supreme Court of Oregon.

Argued April 16, 1942.

Affirmed September 15, 1942.

Ejectment — Description of property

1. A description of property sought to be recovered in ejectment is sufficient if it will enable a competent surveyor to locate the property.

Ejectment — Description by name

2. In ejectment actions a description of property by its name generally suffices.

Mines and minerals — Description by name

3. In order for the name "Tip Top Quartz Claim" to constitute a sufficient description of property in complaint in ejectment, it was necessary only for the claim to be known generally by persons in the district by that name.

Ejectment — Description of property

4. In ejectment, a description of the property in the complaint which is apparently certain is sufficient, since a court will not indulge in conjecture to make doubtful that which seems definite.

Mines and minerals — Sufficiency of description

5. In ejectment for a mining claim, a description of the property in the complaint both by its name and by metes and bounds was sufficient.

Pleading — Speaking demurrer

6. Code pleading does not authorize the use of a speaking demurrer.

Mines and minerals — Speaking demurrer

7. In ejectment action, a speaking demurrer, which attacked, not the description of the mining claim in the complaint but the plaintiffs' location notice and exploratory affidavit which were not quoted in the complaint, was not authorized by code pleading, notwithstanding the reference in the complaint to the mining records.

Mines and minerals — Pleading — Ejectment

8. In ejectment action to recover possession of a mining claim, plaintiffs were not bound to plead their location notice and exploratory affidavit.

Appeal and error — Ejectment

9. In ejectment action to recover possession of a mining claim, where plaintiffs did not plead their location notice and exploratory affidavit, supreme court, on appeal from judgment of dismissal after demurrer to complaint for failure to state a cause of action was sustained, would not consider notice and affidavit, although copies thereof were attached to the demurrer.

Pleading — Liberal construction

10. The rule of strict construction against the pleader when his pleading has been attacked by demurrer has been supplanted by the statute requiring liberal construction with a view of substantial justice.

Pleading — Demurrer

11. Under the code the test of the sufficiency of a pleading attacked by demurrer is fair notice to the opposing side and to the court.

Ejectment — Pleading

12. Under statute providing that an ejectment action cannot be maintained unless the complaint avers that defendant's possession is wrongful, where one paragraph in complaint alleged that the plaintiffs were damaged by the "wrongful withholding", an allegation in another paragraph that the withholding was "wilful" was sufficient.

                  See 18 Am. Jur. 72
                  28 C.J.S., Ejectment, § 62
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Josephine County.

H.K. HANNA, Judge.

Action of ejectment by Howard Griffith and another against R.C. Hanford and others. A demurrer to the complaint was sustained, the plaintiffs declined to plead further, and judgment of dismissal was entered, and plaintiff appeals.

REVERSED.

W.T. Miller, of Grants Pass, for appellants.

A.E. Reames, of Medford, for respondent.

ROSSMAN, J.

This is an appeal from a judgment of dismissal entered by the circuit court after it had sustained a demurrer to the complaint and the plaintiffs had declined to plead further. The demurrer was predicated upon an assertion that the complaint failed to state a cause of action. The plaintiffs' brief says: "This is an action of ejectment." The defendants' brief makes a like statement. We are satisfied that the parties have correctly described the nature of the action.

Section 8-203, O.C.L.A., in specifying the required contents of the complaint in an action of ejectment, states:

"The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be had."

The complaint describes the property involved in this action thus:

"* * * that certain Quartz Mining Claim located in the Powell Creek Mining District, County of Josephine, State of Oregon, known as the Tip Top Quartz Claim, and described as follows, to-wit:

"Beginning at Corner No. 1, on west line of east 1/4 of the Northeast quarter of the Northeast quarter of Section 20, Township 38 South, Range 5 West of the Willamette Meridian, running in a southeasterly direction 1500 feet to stake, then West 600 feet to stake, then in a Northwest direction 1500 feet to stake, then 600 feet East to starting point.

"The location notice of which Claim is recorded at page 578 of Volume 37, Mining Records of Josephine County, Oregon."

The first question presented by the demurrer is whether the sheriff of Josephine county with that description before him could identify the property and deliver possession of it to the plaintiffs in the event of their success in this action.

It will be observed that the foregoing description contains the following identifying facts: The property is owned by the plaintiffs; it is a quartz mining claim known as the Tip Top Quartz Claim; it is located in the Powell Creek mining district of Josephine county; it is, in whole or in part, in the northeast quarter of Section 20, Township 38 South, Range 5 West; and one of its corners appears to be upon the west line of the northeast quarter of the tract just mentioned. Other identifying facts are also given in the complaint. We shall now discuss them.

The description says: "Beginning at Corner No. 1, on west line of east 1/4 of the Northeast quarter of the Northeast quarter of Section 20, * * *." The term "east 1/4" clearly is a misnomer. In the east half of the larger tract there are two quarters, a northeast and a southeast, but there is no part which can be accurately described as the "east 1/4". Very likely "east 1/2" was intended. We revert to the words: "Beginning at Corner No. 1, on west line of * * *." The record seemingly gives no intimation as to what point on the west line is meant by the term "Corner No. 1." The parties cite no book, treatise or decision which defines the term "Corner No. 1" but we observe that the Manual of Instructions for the Survey of the Public Lands of the United States, Edition of 1930, compiled by the Department of the Interior, General Land Office, and printed by the Government Printing Office, employs that term in dealing with mineral surveys. Section 706, p. 422, of that volume says:

"In making the official survey, corner No. 1 of each location embraced in the claim will be established at the angle nearest the public survey corner or mineral monument to which connection is made. If connection is made both to a corner of the public survey and to a mineral monument, corner No. 1 should be placed nearest the corner of the public survey."

Section 710 says:

"From corner No. 1 the successive boundaries of each location will be run in regular manner, numbering the remaining corners in consecutive order."

We also observe that Rule 135 of the regulations promulgated by the Department of the Interior, General Land Office, April 11, 1922 (Circular No. 430), says:

"135. Corner No. 1 of each location embraced in a survey must be connected by course and distance with nearest corner of the public survey or with a United States location monument, if the claim lies within two miles of such corner or monument. If both are within the required distance, the connection must be with the corner of the public survey."

Rule 138 of the same promulgation says:

"138. In making an official survey, corner No. 1 of each location must be established at the corner nearest the corner of the public survey or location monument, unless good cause is shown for its being placed otherwise. If connections are given to both a corner of the public survey and location monument, corners Nos. 1 should be placed at the corner nearest the corner of the public survey."

The latter two rules are set forth in Morrison's Mining Rights, 16th ed., at pages 539 and 540. Clark on Surveying and Boundaries, 2d ed., pages 38 and 39, presents a method for identifying the corners and other points of a plat. One of his identifying terms is "Corner No. 1."

1. A description is sufficient if it will enable a competent surveyor to locate the property: Warvell on Ejectment, § 185; and Security Savings & Trust Co. v. Ogden, 123 Or. 370, 261 P. 69. Whether a surveyor through the use of the identifying terms of which we have just taken notice, could locate the contested mining claim, we do not know. Possibly other data is required to know at what point on the west line Corner No. 1 is located. But it may be that a surveyor could locate Corner No. 1 from the information given in the complaint. Be that as it may, we observe that the description also says that the property is "known as the Tip Top Quartz Claim."

2. In ejectment actions a description of property by its name generally suffices. A good illustration is Barrett v. Crary, 4 Alaska 483. The property involved in that action was a mining claim which, according to the complaint, was known as the "Ora." The statutory requirement concerning description in the complaint was precisely the same as ours. The descriptive material was less than that included in the complaint now before us. The cause was before the court upon a motion of the defendant to make the complaint more definite and certain. In denying the motion and in thereby sustaining the sufficiency of the description, the decision said:

"If a lode mining claim in the locality mentioned is known and called the `Ora,' it is described with sufficient certainty to enable the possession thereof to be delivered, if the plaintiffs p...