Kanne v. Otty

• Decision Date: 24 April 1894
• Citation: 25 Or. 531,36 P. 537
• Parties: KANNE et al. v. OTTY et al.
• Court: Oregon Supreme Court

36 P. 537

25 Or. 531

KANNE et al. v. OTTY et al.

Supreme Court of Oregon

April 24, 1894

Appeal from circuit court, Clackamas county; T.A. McBride, Judge.

Action by August C. Kanne and Wilhelmina Kanne against William Otty and Agnes Otty to quiet title. From a judgment for defendants, plaintiffs appeal. Affirmed.

G.W. Allen, for appellants.

A.S Dresser, for respondents.

MOORE J.

This is a suit to quiet title. The plaintiffs allege in their complaint that they are the owners in fee and in possession of the William S. Buckley donation land claim in sections 28 and 33, township 1 S., of range 2 E., in Clackamas county, and that the defendants unlawfully claim some interest in a portion of said claim, 3 chains in width, and 34.50 chains in length, extending across the east end thereof. The defendants, after denying the allegations of the complaint, allege that the disputed tract forms no part of the Buckley claim, but that it is a part of lot 3, section 28, and of lot 1, section 33, in said township, joining the Buckley claim on the east, of which they are the owners in fee and in possession. The reply having put in issue the allegations of new matter contained in the answer, the cause was referred to Charles E. Runyon to take and report the testimony, which having been done, the court found for the defendants, decreed that they were the owners, and entitled to the possession, of said tract, and allowed them their costs and disbursements, from which decree the plaintiffs appeal.

The plaintiffs contend that the said Buckley claim is 46.50 chains in length and 34.50 chains in width, containing 160.43 acres, while the defendants contend that the east boundary of said claim, as originally surveyed, was located but 43.50 chains from the west boundary, and that the claim contains only 150.08 acres. The plaintiffs, to support their contention, offered in evidence a certified copy of the original field notes of said Buckley claim, from which it appears that the survey was made November 8, 1857, by beginning at the post at the corner to sections 28, 29, 32 and 33 in said township; thence running north on the west boundary, 14.50 chains, to the northwest corner; thence returning to the initial point, and running south on the west boundary, 20 chains, to the southwest corner; thence east on the southern boundary 46.50 chains, where a post was set for the southeast corner; thence north on the east boundary, and at a point 15.75 chains from the southeast corner the line passed through a fir 30 inches in diameter; at 20 chains it intersected the line between sections 28 and 33, 4.24 chains east of the quarter post; and at 34.50 chains a post was set for the northeast corner, from which a fir 24 inches in diameter bears south, 62~ east, 52 chains, and a fir 36 inches in diameter bears south, 77~ west, 86 chains; and thence west on the north boundary, 46.50 chains, to the northwest corner. The United States patent to William S Buckley, and the mesne conveyances of said donation claim to the plaintiffs, adopt the description of the premises given in the field notes. The evidence shows: That, when said claim was originally surveyed, the east end was covered with timber and brush, which have since been entirely removed, leaving no witness trees to the southeast corner. That an old fence extended south from a point 43.50 chains east of the northwest corner of the claim, across the east end thereof, to a point at the same distance east of the southwest corner; that the defendant William Otty, William Ryan, plaintiffs' grantor, and others petitioned the county court of said county to establish a county road, which was surveyed April 29, 1882, the line extending west along the south boundary of said lot 1, 33.50 chains from the southeast corner thereof, to a point 46.50 chains east of the southwest corner of the Buckley claim, and thence running north on what was supposed to be the boundary line between said claim and defendants' land; that, after said road was located, Ryan began at the south end of the old fence and moved about two-thirds of it east to the county road making an angle at the north end, as moved, connecting it with the remaining third, which extends to the north boundary of the claim. John Meldrum testified: That, as county surveyor of said county, he, at the request of Ryan, surveyed the Buckley claim after the plaintiffs had acquired the legal title thereto, by beginning at the initial point of the original survey, and found the northwest and southwest corners as originally located. That he ran east from the southwest corner 46.50 chains, where he set a stake at a point 1.30 chains east of the angle stake on the county road; thence north; and at the proper distance he tried to find the tree described in the field notes, but was unable to do so. That he saw a stump two or three rods out of line, but did not consider it the one sought for. That he intersected the line between sections 28 and 33 at a point 6.76 chains east of the quarter post, which he established, and at a point 34.50 chains from the stake set for the southeast corner he found it to be 3.22 chains east of what he concludes to be the northeast corner of said claim. At this point he found both bearing trees blown down, but corresponding in course and distance with the field notes, and by chopping into them he found surveyors' marks. He also found a stone set there for the northeast corner, which he recorded as such. After finding this corner, he ran west on the north boundary, and at 43.52 chains he arrived at the original northwest corner. John Smart, who lived on land adjoining the Buckley claim on the south, testified that while assisting Ryan to plow the fencerow on the line between their claims he found, at the south end of the old fence, a decayed hardwood corner stake about 3 or 4 inches square, and about 18 or 20 inches long, which he pulled up, and found figures on it; that Ryan said it was a corner stake, and that he would put it up at the corner. S.B. Millard testified that he moved the old fence, and in doing so...