Harris v. Harris

• Jurisdiction: Oregon
• Parties: HARRIS v. HARRIS et al.
• Citation: Harris v. Harris, 232 P.2d 818, 192 Or. 361 (Or. 1951)
• Court: Oregon Supreme Court
• Decision Date: 13 June 1951

Page 818

232 P.2d 818

192 Or. 361

HARRIS v. HARRIS et al.

Supreme Court of Oregon.

June 13, 1951.

John F. Kilkenny, of Pendleton, argued the cause for appellant. On the brief were W. E. Hanzen and Raley, Kilkenny & Raley, all of Pendleton.

Charles F. Luce, of Walla Walla, Wash., and Charles R. Cater, of La Grande, argued the cause and filed a brief for respondents.

Before BRAND, C. J., and ROSSMAN, LATOURETTE, WARNER and TOOZE, JJ.

TOOZE, Justice.

On July 7, 1949, the circuit court for Umatilla county made and entered of record its final decree in a partition suit, in which suit appellant Claude Harris is plaintiff, and respondents Mable Harris, Martha Harris Pfieffer, and John Pfieffer, her husband, are defendants.

By the decree, certain described parcels of land were set off and awarded to plaintiff and other parcels to defendants. The decree also provided that the lands so set off and awarded to the respective parties be surveyed so that the true boundary lines between them might be established, and that fences be erected on the survey lines so established. At the time of the proceedings hereafter referred to, the final survey had not been made, nor had any fences been erected.

The decree described certain of the lands awarded to plaintiff as follows:

'The west 9/20 of a tract described as follows:

'All that portion of the southeast quarter, the southeast quarter of the southwest quarter of Section 18, the northeast quarter of the northwest quarter and the north half of the northeast quarter of Section 19 lying south of the county road and north of the precipice of the bluff or hill on the south side of the Walla Walla River.

'All that portion of the southeast quarter, the southeast quarter of the southwest quarter of Section 18 and all that portion of the northeast quarter, and the northeast quarter of the northwest quarter of Section 19 lying south of the precipice of the bluff or hill on the south side of the Walla Walla River. The north half of the southeast quarter and the southeast quarter of the southeast quarter of Section 19.

'The southwest quarter and all that portion of the south half of the northwest quarter of Section 20 lying south of a line fifteen feet north of the north bank of the course of the Walla Walla River as of April 14, 1949, excepting therefrom the following * * *.' (Italics ours.)

A dispute arose between the parties as to the true line 'of the precipice of the bluff or hill,' and also as to the true line described as 'fifteen feet north of the north bank of the course of the Walla Walla River as of April 14, 1949.'

Claiming that the 'precipice of the bluff or hill' designated a line along the top of the bluff, plaintiff carried on certain blasting operations below that line. On the other hand, the defendants who claimed that the description 'fifteen feet north of the north bank of the course of the Walla Walla River as of April 14, 1949,' designated a definite location, carried on certain operations within what they claimed to be the boundaries of the lands awarded to them.

The defendants filed an affidavit and motion for an order upon plaintiff to show cause why he should not be adjudged in contempt of the partition decree in connection with such blasting operations, it being claimed that such operations were in disregard of the true line as designated by the description 'the precipice of the bluff or hill.' An order to appear and show cause was issued and served upon plaintiff. Thereupon, plaintiff filed his affidavit and motion for an order upon defendant Mable Harris to appear and show cause why she should not be adjudged in contempt of the partition decree in connection with operations based upon defendants' contention as to the true line designated as 'fifteen feet north of the north bank of the course of the Walla Walla River as of April 14, 1949,' claiming that such operations were upon lands awarded to him. An order to appear and show cause was served upon defendant.

Upon the issues thus formed, the matter came on for hearing before the court on January 11, 1950, and continued until January 13. The proceedings were consolidated for the purposes of trial. After considerable testimony was received, both contempt proceedings were dismissed, but thereafter the court continued to hear testimony respecting the dispute arising from the foregoing emphasized descriptions and on February 11, 1950, made and entered of record what is entitled 'Opinion on Interpretation of Decree' and thereafter and on May 16, 1950, made and entered of record an 'Order Interpreting Language of Decree.' The plaintiff appeals from this order.

It appeared on the trial that the surveyors were in doubt as to what was meant by the descriptions aforesaid, and wanted a court interpretation thereof, so that a final survey might be made. The parties, by oral stipulations in the record, sought to confer jurisdiction upon the court to interpret the same. However, most of the stipulations were with reservations. This situation can best be illustrated by quoting from the...