Harris v. Backus

Decision Date11 February 1958
Citation212 Or. 695,321 P.2d 315
PartiesBen HARRIS and Alice Harris, husband and wife, Respondents, v. Clarence C. BACKUS and Nellie Backus, husband and wife; Walter T. Backus, a single person; and Reuben H. Mast, Appellants.
CourtOregon Supreme Court

Richard L. Thwing, Cottage Grove, argued the cause and filed a brief for appellants.

Herbert W. Lombard, Cottage Grove, argued the cause for respondents. With him on the brief was William D. Miller, Salem.

Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.

ROSSMAN, Justice.

This appeal challenges a decree which the circuit court entered in favor of the plaintiffs in a suit instituted by them to quiet title to property in Douglas county, which the complaint describes by metes and bounds. The plaintiffs, Ben and Alice Harris, are husband and wife. The defendants, Clarence C. and Nellie Backus, are, likewise, husband and wife. There are two other defendants, Walter T. Backus and Reuben H. Mast. The former is the son of the other two Backuses and received his interest in the property from them. We need not at this point mention the nature of the interest in the property held by Mast. The plaintiffs and the defendants are owners of adjoining tracts of land; that owned by the defendants is immediately south of that owned by the plaintiffs. Both tracts are devoted largely to forestry purposes, although the plaintiff, Ben Harris, operates a sawmill upon a part of his land, and the defendants raise cattle and produce some hay upon theirs. Hereafter, when we employ the word defendants we will mean Mr. and Mrs. Clarence C. Backus.

The controlling issue in the suit is the location of the line which separates the two properties. Both are in Section 34, Township 20 South, Range 6 West, Willamette Meridian. The defendants' is in the southwest quarter of that section, and, if their contentions are sustained, they own the entire quarter section, subject to the interest of the other two defendants, which is of no consequence to the issues before us. The plaintiffs' tract is, as we have said, north of the defendants' and, if their contentions are confirmed, it includes a segment of the southwest quarter. The segment which they claim has, roughly speaking, the form of a triangle. The base of the latter is the quarter section line. The west side of the triangular parcel is the part of the west boundary line of the section which begins at the quarter section corner and extends 94 1/2 feet south. The third boundary line of the disputed triangular tract is the hypotenuse of the triangle; it begins at the south end of the west line of the triangle and, running easterly, extends to the center point of the section. The line which we just described [hypotenuse] is well marked on the ground. The plaintiffs argue that it constitutes the boundary line between their tract and the defendants'. The defendants, upon the other hand, insist that the line which we deemed the base of the triangle, and which extends from the quarter section point to the center of the section, is the true boundary line. We said that the west side of the triangular tract is 94 1/2 feet long. At the southern extremity of that line, that is, 94 1/2 feet south of the quarter section point, a large stake was driven into the ground in the year 1911 or piror thereto and has remained there ever since. Nobody disputes its existence and all seem to infer that the purpose of placing it there was to mark a point and possibly the beginning of a line. One witness, who has lived in the area for more than forty years, testified that he had long been familiar with the stake. He and others indicated that the ground in the immediate vicinity of the stake was cleared of trees, with the result that importance was lent to the stake and it became more noticeable. The witness just mentioned, in speaking of the stake, testified: 'If you ever saw in once, you would never forget it.' For the sake of complete accuracy, we add that the stake stands a few feet west of the west line. As we said, the stake stands 94 1/2 feet south of the quarter section corner. Beginning at that point a blazed line runs to another stake which marks the approximate center of the section. The existence of the center stake is unquestioned. The county surveyor, at the request of the defendants, ran some lines and found that the center stake was within four tenths of a foot of the true center.

The southwest corner of the section is marked by an iron pipe which has on its top a brass cap. That fact is undisputed, and all appear to concede that the marker is correctly placed. A witness tree stands at or near the quarter section corner on the west line of the section. Referring to it, the county surveyor, whose services were engaged by the plaintiffs, testified:

'* * * a tree had been chopped into; and we measured the distance on to the point where there was a stake set in the ground and this stake, I believe from initials and tags on the tree, was set there by Wilbur Haines, who is a registered surveyor from Drain.'

That tree is 94 1/2 feet north of the stake which we previously described and, as we have said, it [the tree] marks the quarter section corner. The blazing upon it took place at a time unknown to any person who testified, but, since the tree's growth had partially obliterated the blazing, it is clear that it occurred many years ago. The county surveyor, in rendering his services, gave attention to the tree and, in testifying, mentioned many of the facts of which we have just taken notice. Although the two stakes which we have described and the blazed line which runs between them played a part in determining boundary lines as the predecessors in title of the plaintiffs and the defendants dealt with the properties, the blazed tree remained unnoticed until shortly before this suit was filed.

From the facts that (1) the southwest corner of the section is well designated, (2) a tree which stands in the quarter section corner was blazed years ago, and (3) the center of the section was denoted by a stake, it is apparent that a competent surveyor who wished to locate the true line between the southwest and northwest quarters could have done so accurately. However, we surmise that the extensive underbrush would render the work costly.

A circumstance which lends significance to the two stakes and the blazed line which lies between them is the fact that the larger timber has been cut from the defendants' land but not from the plaintiffs'. In felling the trees, the blazed line was respected and, accordingly, a noticeable change in the standing timber takes place at the blazed line. A surveyor, who took careful note of the facts, testified: 'There hadn't been any trees cut north of the blazed line.' Thus, the change in the timber that occurs at that line accents the latter. It indicates that heed had been given to the line for an important purpose.

As we have said, the plaintiffs claim that the blazed line which we just described is the border between their property and that of the defendants. If that is true, they own the tract we have described as, roughly, triangular in shape and which constitutes the most northerly part of the southwest quarter. The defendants, upon the other hand, contend that the line which separates the southwest quarter from the northwest quarter is the border line between their property and the plaintiffs'. If their contention is correct, they own the entire southwest quarter. In that event, the blazed line, although its existence is conceded by all, is not a boundary marker. Thus, this triangular-shaped tract is the only piece of property in dispute in this suit.

The record does not reveal the identity of the individual who put in place the stake which stands in the west line of Section 34 at a point 94 1/2 feet south of the quarter section point. The stake is four inches in diameter and was squared at the top. The wood out of which it was shaped was well selected, for it contains such a quantity of pitch that it has been able to withstand the vicissitudes of forty years and yet remain well preserved. A witness tree stands near it, and received comment from the witnesses as they described the surroundings. At about the same time that the stake was placed, someone blazed the line which begins there and runs to the center of the section. A surveyor who was familiar with the blazed line testified: 'It had an indication of being old when I first looked at it.' No one questions the blazes upon the trees nor the fact that they can be traced without difficulty to the stake which stands in the center of the section.

According to the plaintiffs, the parties and their predecessors in title have treated the blazed line ever since 1911 as the boundary that separates the two properties. We shall not review the testimony given by all the witnesses, but for the purpose of illustrating its nature, we will take note of facts to which three or four of them gave expression.

Arthur Woolley, in 1911, filed a homestead entry upon the property which the plaintiffs now claim as theirs and remained upon it for a year. He testified that while living there he observed the two stakes which we have mentioned and the blazed line which runs between them. 'I accepted that line,' so he stated, 'as the southern boundary.' He added that he claimed all the land up to 'the blazed line from this stake to the other stake.' He had recently been upon the property and had found that the stake which he noticed in 1911 was still standing. He swore that it denoted the northwest corner of the defendants' property and the southwest corner of the plaintiffs'.

Henry Fred Prelle, 80 years of age, who resides in Section 33, immediately east of the section which contains the tracts in dispute, detailed the manner in which, while hunting, he encountered the stake which stands in the west line of Section 34...

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6 cases
  • Drury v. Pekar
    • United States
    • Oregon Supreme Court
    • September 21, 1960
    ...transfer of title, but by way of estoppel." Kincaid v. Peterson et al., 135 Or. 619, 628, 297 P. 833, 836. See also Harris et ux. v. Backus et al., 212 Or. 695, 321 P.2d 315; Satchell v. Dunsmoor, 179 Or. 463, 172 P.2d 826; Kingsley v. Jacobs, 174 Or. 514, 149 P.2d 950; Cooley et al. v. Hen......
  • Ross v. DeLorenzo, 80-4535-NJ-2
    • United States
    • Oregon Court of Appeals
    • February 8, 1984
    ...resolving a dispute by mutually fixing an unknown boundary rather than by making a conveyance of land. See Harris et ux. v. Backus et al., 212 Or. 695, 710, 321 P.2d 315 (1958) (quoting Note, 28 Or.L.Rev., supra, at 364). The element of resolution of uncertainty may also provide the conside......
  • Wampler v. Sherwood
    • United States
    • Oregon Supreme Court
    • February 8, 1978
    ...proof of the establishment of a boundary by "acquiescence" or "practical location," were discussed, as stated in Harris et ux v. Backus et al, 212 Or. 695, 321 P.2d 315 (1958). Agreement was then reached that this issue be submitted to the jury under the following instruction, to which neit......
  • Blaisdell v. Nelsen
    • United States
    • Oregon Court of Appeals
    • January 18, 1984
    ...line as the boundary. Finally, the parties must evidence their agreement by their subsequent actions. 2 Harris et ux. v. Backus et al., 212 Or. 695, 321 P.2d 315 (1958); Ross v. DeLorenzo, supra. We find that plaintiff has established that the fenceline is the boundary by agreement. The man......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter § 60.3 RESOLVING DISPUTES BY LITIGATION
    • United States
    • Oregon Real Estate Deskbook, Vol. 5: Taxes, Assessments, and Real Estate Disputes (OSBar) Chapter 60 Boundary-line Disputes; Encroachments
    • Invalid date
    ...at 515. Acquiescence in this context means that the parties "dealt with" the line as the true boundary. Harris v. Backus, 212 Or 695, 712, 321 P2d 315 (1958). An agreement by a purchaser's predecessor in interest and the abutting landowners that an old rail fence was the boundary between th......

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