Hume v. Burns
| Decision Date | 09 July 1907 |
| Citation | 50 Or. 124,90 P. 1009 |
| Parties | HUME v. BURNS. |
| Court | Oregon Supreme Court |
Appeal from Circuit Court, Curry County; J.W. Hamilton, Judge.
Suit by R.D. Hume against E.B. Burns. Plaintiff appeals from a decree of dismissal. Affirmed.
This is a suit to enjoin a trespass on real property. It is alleged that the plaintiff is owner in fee of the property in question; that for about months prior to the commencement of this suit, the defendant, without right, unlawfully vexatiously, and willfully entered upon such premises, and deposited and kept thereon net racks and other fishing appliances, and lodged and cleaned fish thereon, and at various times occupied and used the premises as his own; that on or about the 11th day of February, 1903, he dug a trench or drain thereon to empty a pond, partly on plaintiff's land and partly on adjoining land; that defendant had assembled building material upon such premises, and commenced the construction of a building; that on October 13, 1903 plaintiff commenced an action at law against him to recover damages for certain trespasses committed; and that defendant is insolvent and unable to answer in damages. The defendant answered, denying all the material allegations of the complaint, and for an affirmative defense pleaded that the alleged acts of trespass were not committed upon plaintiff's land. After issue joined, the cause was referred to a referee to report the testimony. Pending the hearing before the referee, the plaintiff, by leave of the court, filed a supplemental complaint, alleging that, since the commencement of the suit, such proceedings had been had in the action of trespass, mentioned in the complaint, that plaintiff recovered a judgment therein against defendant for $25 damages. A demurrer to the supplemental complaint was sustained, the cause tried on evidence, as reported by the referee, and a decree rendered in favor of defendant dismissing the suit for want of jurisdiction. From this decree, plaintiff appeals.
W.C Hale, for appellant.
John F. Hall and M.G. Munly, for respondent.
BEAN, C.J. (after stating the facts).
The only material question in this suit is the location of the southeasterly line of plaintiff's premises. Plaintiff owns a narrow strip of rocky and sandy beach land along and in front of the town of Ellensburg, and extending to the Rogue river on the north. It is uninclosed and unimproved and valued chiefly because it affords access to the waters of the river. In 1903, the defendant, who was engaged in taking salmon in the river, for commercial purposes, used this land as a landing for boats and nets in connection with his business; but such use did not substantially injure plaintiff's estate. Before the commencement of this suit, he purchased or leased a tract of land south of and adjoining plaintiff's land, and in February, 1903, began to assemble material for the purpose of erecting a salthouse. Plaintiff, claiming and alleging that defendant proposed to construct such salthouse on his land, commenced this suit to enjoin him from so doing. Upon the filing of the complaint, a temporary injunction was issued and served upon defendant, whereupon he changed the location of his proposed building to a place outside of the boundary line of plaintiff's premises, as, he claims, the same was pointed out to him by plaintiff's attorney, and thereafter completed such building. It is now asserted, by the plaintiff, that the building is either wholly or partly on his premises, while the defendant's position is that it is outside of such boundary and on land bordering plaintiff's premises. This is the only question sought to have determined in this suit. The other acts of trespass, charged in the complaint, have either not been proved, or, as we must assume, are not considered by plaintiff sufficient to entitle him to injunctive relief, since no mention is made of them in the briefs, and no particular prominence given them in the argument. The only question then, as we take it, to be determined in this case, is the title to land upon which defendant's building is situated, and this depends upon the location of the boundary thereof.
Now the law is that a suit to enjoin a trespass cannot be used as a...
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Roy v. Moore
... ... Id.; Black v. Jackson, 177 U.S. 349, 20 ... Sup.Ct. 648, 44 L.Ed. 801; Bishop v. Baisley, 28 Or ... 139, 141, 41 P. 936; Hume v. Burns, 50 Or. 124, 90 ... P. 1009, 1010; Bay Paint Mill Co. v. Saunders, 58 ... Fla. 390, 50 So. 984; Lehigh V. R. Co. v. N.Y. & N.J. W ... ...
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...at law is inadequate, a court of equity in such or like cases is authorized to interfere and grant relief by injunction. Hume v. Burns, 50 Or. 124, 127, 90 P. 1009. Erhardt v. Boaro, 113 U.S. 537, 5 Sup.Ct. 565, 28 L.Ed. 1116, the Supreme Court of the United States held that: 'It is now a c......
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