Hanson v. Thornton

• Decision Date: 25 March 1919
• Citation: 91 Or. 585,179 P. 494
• Parties: HANSON v. THORNTON.
• Court: Oregon Supreme Court

179 P. 494

91 Or. 585

HANSON v. THORNTON.

Supreme Court of Oregon

March 25, 1919

In Banc.

Appeal from Circuit Court, Lake County; L. F. Conn, Judge.

Suit by J. F. Hanson against A. L. Thornton. Judgment for plaintiff and defendant appeals. Affirmed.

This is a suit to enjoin defendant Thornton from repeated trespasses upon certain lands of plaintiff, and to quiet the title of plaintiff to said land. The complaint alleges, among other matters, that:

"For more than 20 years last past, plaintiff and his predecessors in interest have been continuously the owners and entitled to the possession of the following described real property, situated in the county of Lake, state of Oregon, to wit:

"Beginning at a point 1,650 feet south and 1,320 feet east from the northwest corner of section 17, township 41 south, range 19 east of the Willamette meridian, in Lake county Oregon; thence running east to the edge of the waters of Goose Lake on its west shore; thence southerly following the edge of the waters of Goose Lake on its west shore to a point where the state line between the states of Oregon and California intersects the water's edge of Goose Lake on its west shore; thence west along said state line to the southwest corner of lot 3 in section 20, township 41 south, range 19 east of the Willamette meridian thence north along the west boundary line of lot 3 in said section 20, to the south boundary line of lot 2 in said section 20; thence west to the southwest corner of said lot 2; thence north along the west boundary line of said lot 2 to the south boundary line of lot 1 in said section 20; thence west along the south boundary line of said lot 1 to the southwest corner of said lot 1; thence north to the point of beginning.

"Heretofore during the month of December, 1917, the above-named defendant, A. L. Thornton, unlawfully, wrongfully, and without right or claim of right, repeatedly entered and trespassed upon the above-described lands of plaintiff, and cut down, destroyed, and otherwise injured valuable trees and shrubbery growing upon said premises, and dug into and threw up the soil of said premises, and threatens to and will unless restrained by this court, continue said trespasses and depredations, to the irreparable injury of plaintiff."

There are further allegations tending to show irreparable injury and the usual prayer for equitable relief. Appellant answered, admitting that he had entered upon the lands described, but denied that such entry was unlawful, or that he had thereby committed a trespass, and pleaded as justification for such entry:

"That the lands in plaintiff's complaint described are unsurveyed public lands of the United States of America; that said lands are not the property of plaintiff; that said lands lie and are situated between the meander line of Goose Lake, and the water's edge of said lake on the western shore thereof; that in 1872 one J. H. Evans, as deputy United States surveyor for Oregon, pretended to make a survey of sections 17 and 20 in township 41 south, range 19 E. W. M., in Oregon, which are the sections lying immediately west of and abutting on the land described in plaintiff's complaint, and said deputy surveyor, at said time platted and reported said sections as fractional sections meandered by Goose Lake, while in truth there was a large area of land, to wit, east of the land in plaintiff's complaint described, lying between said meander line and the actual water's edge of Goose Lake; that said deputy surveyor fraudulently failed to examine the land lying between said meander line and Goose Lake, and fraudulently failed to run said meander line approximately along the actual water's edge of Goose Lake, and fraudulently failed to include in said sections 17 and 20 said land which defendant avers was then not covered by the waters of Goose Lake; that because said land was fraudulently omitted from said survey it is now, and was at the time of defendant's entry thereon, public unsurveyed land of the United States of America, and was and is subject to entry by defendant; that defendant has not exercised or used his public land rights, and claims the right to go upon and enter said land under the homestead laws.

"For a further answer to said complaint defendant here repeats the allegations contained in his first further answer herein, and alleges that by mistake as to the actual conditions existing along the shore of Goose Lake, abutting upon sections 17 and 20, township 41 south, range 19 E. W. M., the said deputy surveyor failed to include in said survey in plaintiff's complaint described that said land is, and then was, larger in extent than the fractional lots of said sections 17 and 20, abutting upon said land; that because of said mistake, omission of said land from said survey, said land is now public unsurveyed land of the United States of America, and defendant has and claims the right to go upon and enter said land under the homestead laws."

Plaintiff replied by appropriate denials of any fraud or mistake in the surveys, and alleged, in substance:

That in the year 1872 the United States government caused a survey of fractional sections 19 and 20 in township 41, and that at said date said fractional sections abutted upon the shore of Goose Lake, then and now a body of water about 35 miles long and 12 miles wide, and that the meander line of said survey was run along a high gravel bank, washed by the waters of the lake, and extending along the whole front of said fractional sections.

That said survey was made in good faith without fraud or mistake and did not exclude from the surveyed land any lands not covered by the waters of Goose Lake, except possibly some small irregular points of lands aggregating less than an acre in extent; that said survey was correctly platted and delineated on the map, and was approved by the Commissioner of the General Land Office, and became and is the official survey; that thereafter, in 1889, a resurvey was ordered of portions of the land, and as a result the meander line original survey in front of sections 17 and 20 was found to be correct, and no resurvey was made, and thereafter, by...