Hicklin v. McClear

• Decision Date: 21 December 1889
• Citation: 18 Or. 126,22 P. 1057
• Parties: HICKLIN v. MCCLEAR.
• Court: Oregon Supreme Court

22 P. 1057

18 Or. 126

HICKLIN v. MCCLEAR.

Supreme Court of Oregon

December 21, 1889

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

The respondent commenced an action against the appellant to recover the possession of certain real property, which is described in the complaint by metes and bounds, and is also referred to therein as lots 1 and 2, block 3, of the town of Brookland. The complaint was in the usual form. The answer set up a title to the premises by adverse possession, which was denied in the reply. The case was tried by the court without a jury, and the following facts and conclusions of law found: (1) That plaintiff has a correct and complete title by mesne conveyances from the United States to lots 1 and 2, in block 3, in the town of Brooklyn or Brookland. (2) That Gideon Tibbets, the donee from the United States of the land in controversy, caused the same, with other lands adjacent, to be platted as a townsite in 1857; that he employed the then county surveyor, Israel Mitchel, to survey and plat said land into such town-site; that the surveyor contrary to the wish and intent of the proprietor, called the plat so made a plat of the village of "Brookland," and by the direction of said Tibbets he shortly thereafter made another plat identical as to the location of lots blocks, streets, and alleys, and as to the numbering of such lots and blocks, as the plat of Brookland, and designated such lastnamed plat as a plat of the village of "Brooklyn;" that both such plats were used indifferently for the purpose of designating, locating, and describing lots and blocks sold in said village of Brooklyn by the proprietor and owners of the townsite and land, and in describing the said lots and blocks in the deed made thereto. (3) That the aforesaid plat, styled "Plat of the Village of Brookland," was left with the county auditor for record by defendant J.W. Kern, by the direction of Gideon Tibbets, on the 28th day of January, 1869, and was copied into the records of deeds of Multnomah county, state of Oregon, but the said map was not entitled to record, because not certified or acknowledged. (4) That subsequently, on the 30th day of July, 1870, Tibbets and wife undertook to acknowledge said map, and cause to be recorded their acknowledgment of said recorded plat in said records of deeds of Multnomahcounty, Or.; that defendant's grantor, J.W Kern, at one time constructed a temporary fence of brush and poles, which would include the property in controversy, for the purpose of pasturing his horse and cow thereon, but which was not maintained for any great length of time; that on November 23, 1872, defendant had platted and recorded a plat styled, "Kern's Addition to the City of East Portland," which embraced substantially the lands embraced in the plat of Brooklyn, but which materially alters the location of the streets, lots, and blocks, and which was without alleys, and which designated the lots and blocks differently from the other plat; that said last-named plat was made and recorded without any previous vacation of the streets and alleys dedicated by the plat of Brooklyn by any court or person. (5) That on January 13, 1872 defendant's grantors for the first time acquired color of title to the land in controversy by deed of quitclaim from Tibbets and wife by metes and bounds, describing a tract which would include the land in dispute, and on November 23d of that year took a quitclaim from Lewis Love and wife to the same property, but all of these deeds were executed long after plaintiff's grantors had acquired title to the property in dispute. (6) That neither defendant nor his predecessors or grantors has ever had actual occupancy or possession of the property in controversy adversely to plaintiff for the period of 10 years; that defendant's grantors first entered on the tract of land, including the parcels in controversy, in 1861, and under the parol agreement for conveyance from Clinton Kelly, which conveyance was made in 1863, and described certain lots and blocks, of which block 12 was one, in the town of Brooklyn. They actually occupied block 12, and in the years 1872, 1874, and 1877 received conveyances from Love and Tibbets for a tract of land, described by metes and bounds, which included said block 12, and also the land in controversy. After 1872, and until the commencement of this action, said defendant's grantors have continuously occupied, by themselves or by tenants, said block 12, and have claimed an exclusive ownership of the remainder of the tract described by metes and bounds, but have at no time been in actual possession of the land in dispute, until about ______ years ago, and when they sold to defendant, who thereafter, and from the ______ day of ______, 1884, has actually occupied the premises until the commencement of this suit. The land in dispute is separated from block 12 by several streets, marked out and dedicated by the plat of Brooklyn. The defendant's immediate grantors have had constructive possession of the property in controversy for the period of more than 10 consecutive years prior to the commencement of this action, unless the existence of the town-site of Brooklyn, within which the residence of defendant's immediate grantors and the lots in dispute are situated, has precluded the application of the right of constructive possession in this case. (7) That the improvements made by defendant upon the property in controversy, consisting of digging a well, clearing the premises, setting out fruit trees, and building house thereon, has added to the value of said premises in the sum of $200. (8) That the value of the use and occupation of said premises by defendant from the 6th day of October, 1884, to the date of the commencement of this action is $50.

And as conclusions of law, found: (1) The plaintiff is the owner, and entitled to the immediate possession, of the property in controversy, described as follows: Beginning at a point 320 feet east and 37 feet south of the corners of sections 2, 3, 10, and 11, in township 1 S., range 1 E. of the Willamette meridian, running thence north 99 feet; thence east 100 feet; thence south 99 feet; thence west 100 feet, to the place of beginning, containing about one-fourth of an acre; the same being part of lots 1 and 2, in block 3, in the town or village of Brooklyn or Brookland, in Multnomah county, Or. (2) That by the making of said plat of Brooklyn, the recording of the identical plat under the name of "Brookland," and sale of lots and blocks thereby, the streets and alleys indicated on said plat became and were irrevocably dedicated to the public; and the subsequent platting and recording of a plat by defendant's grantors did in no wise affect or revoke said dedication without the consent of purchasers of blocks and lots under the former plat and of the public; that by the making of said plat of Brooklyn, the recording of the identical plat under the name of "Brookland," and sale of lots and blocks thereby, the lots and blocks so platted were thereby constituted into separate tracts, over which constructive adverse possession of a person who subsequently obtained a quitclaim deed from one without title to the whole of such original plat so platted, describing it by metes and bounds, will not extend; and his possession will be limited to such of said lots and blocks as he actually occupies in a hostile manner, as against the true owner of any of said lots and blocks; that plaintiff is entitled to judgment according to the prayer of the complaint.

And thereafter, the defendant having moved for a new trial, the court, after hearing the argument of counsel, and having duly considered the same, overruled said motion, and upon the request of counsel for appellant made and filed the following additional findings of fact, to-wit: (1) That prior to the year 1870, there had been sold and conveyed by Tibbets and Love about 100 lots in the town of Brooklyn, and they were described in the conveyance as situated in the town of Brooklyn. (2) That there was never any formal acceptance by any public authority, or by the public in any mode, of the dedication of streets in the town plat and site of Brooklyn, nor were such streets actually opened or used as such, or designated on the ground otherwise than by surveyor's stakes, and the tract was covered with brush or timber.

Upon which findings the judgment appealed from was entered.

(Syllabus by the Court.)

In appeals to the supreme court from judgments of circuit courts, entered upon findings, the findings of fact must be regarded as conclusive of the facts in the case; and the appellate court will only consider, as respects the findings, whether the facts found justify the conclusions of law drawn therefrom, unless it is made to appear from a statement of exceptions that the evidence upon which the findings of fact were made was not, as a matter of law, sufficient to support the same.

When a party, in cases above referred to, desires to raise the questions upon appeal, that the circuit court refused to find a material fact, he must show by a statement of exceptions that the evidence in the case warranted such a finding, and that he duly applied by motion to the court to make it, or asked it to be done when the evidence closed.

A refusal by a circuit court to make a finding of fact material in the case, where the evidence establishes it, is a good ground of exception.

Parol evidence is admissible to prove the circumstances under which a deed to real property was made, or to which it relates, or to explain an ambiguity, intrinsic or extrinsic, or to show the situation of the subject of the deed, or of the parties to it, in order to ascertain the premises which it was intended to convey.

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