Lamford Lumber Co. v. Lemons

• Decision Date: 21 December 1955
• Citation: 289 P.2d 684,206 Or. 140
• Parties: LAMFORD LUMBER COMPANY, a corporation, Respondent, v. Jim LEMONS, Brice Lemons, Dennis Lemons, and Clyde Stormer, Appellants.
• Court: Oregon Supreme Court

Page 684

289 P.2d 684

206 Or. 140

LAMFORD LUMBER COMPANY, a corporation, Respondent, v. Jim LEMONS, Brice Lemons, Dennis Lemons, and Clyde Stormer Appellants.

Supreme Court of Oregon.

Argued Oct. 31, 1955.

Decided Nov. 16, 1955.

Rehearing Denied Dec. 21, 1955.

See 291 P.2d 733.

Roy Kilpatrick and Michael S. Mogan, Canyon City, argued the cause for appellant. With them on the brief were Robt. D. Lytle and W. F. Schroeder, Vale.

Harold Banta, Baker, argued the cause for respondent. On the brief were Yokom & Campbell, John Day, and Banta, Silven & Horton, Baker.

Before WARNER, C. J., and TOOZE, BRAND and PERRY, JJ.

PERRY, Justice.

The plaintiff commenced a suit against the defendants, and in its complaint alleged the following:

'I

'That the plaintiff, Lamford Lumber Company, is, and has been at all times material herein, an Oregon corporation, duly organized and authorized to do business in the State of Oregon.

'II

'That the plaintiff is the owner of certain timber and logs now located on the NE 1/4 and the N 1/2 of the SE 1/4 of Section 17 in Twp. 14 S., R. 30 E., W.M., located in Grant County, Oregon.

'III

'That the only means by which the timber and logs located upon the abovedescribed real property can be transported to plaintiff's mill at Mt. Vernon, Oregon, is over and upon that certain, public road running from Mt. Vernon, Oregon, across Sections 28, 29 and 32 in Twp. 13 S., R. 30 E., W.M., and Sections 4, 9 and 8 in Twp. 14 S., R. 30 E., W.M.; and that said road as it runs across said Sections has been used by the general public and adversely to the owners of the land upon which the same runs, for a period of more than 20 years.

'IV

'That the defendants are in possession and control of portions of the land upon which said road is located.

'V

'That the defendants have wrongfully, maliciously, wilfully and unlawfully prevented the public use of the road here in question, and have placed locks upon certain gates, making it impossible for the plaintiff to haul its logs to its mill, and that if defendants are allowed to persist in this course of conduct, the plaintiff will be unable to haul its logs which are now cut, which will cause them to become spoiled and useless, and will interrupt the lumber and logging activities of the plaintiff, causing it great and irreparable damage which cannot be compensated in money.

'VI

'That the plaintiff has no plain, speedy or adequate remedy at law, and therefore brings this suit in equity.'

The prayer was for the equitable relief of injunction.

The defendants demurred to the plaintiff's complaint 'for the reason that the same fails to state sufficient facts to constitute a cause of suit against the defendants or any of them.'

The trial court overruled the defendants' demurrer, and, the defendants refusing to plead further, judgment was entered for the plaintiff. Defendants have appealed from the trial court's ruling upon the demurrer, and the judgment thereafter entered.

It is now firmly established as a ruld of law of this state that when the sufficiency of a complaint is in the first instance tested by a demurrer the language therein used to state the pleader's case is to be construed strongly against the pleader, and facts not alleged are not presumed. Windle v. Flinn, 196 Or. 654, 662, 251 P.2d 136.

Plaintiff's complaint in this case must be considered with the above rule in mind.

Defendants argue that the complaint is insufficient because it alleges only that a public road exists by 'adverse use' without setting forth the elements or facts necessary to establish adverse use. The plaintiff answers that it is unnecessary to set forth these elements since under an allegation of ownership of real property in fee any title may be proven, including adverse possession; citing Anderson v. Richards, 100 Or. 641, 198 P. 570; Smith v. Algona Lumber Co., 73 Or. 1, 136 P. 7, 143 P. 921; Hamm v. McKenny, 73 Or. 347, 144 P. 435, and Neal v. Davis, 53 Or. 423, 99 P. 69, 101 P. 212.

The above cases relied upon by the plaintiff correctly state the law, but are not analogous to the present situation. In the matter before us, the plaintiff has attempted to say that a public way has been established, not by recognized public authority or dedication, but by adverse use. In other words, the plaintiff has elected to set forth the manner in which it as a member of the public has obtained a right over and across the lands described in its complaint. In the cases cited and relied upon by the plaintiff, the parties did not elect to set forth the manner in which they acquired title.

We have often said that where title to real property is claimed by prescription it is necessary to plead and prove the elements necessary to establish the resulting transfer of title to the claimant. Reeves v. Porta, 173 Or. 147, 144 P.2d 493.

The necessary facts to be proven to establish an easement by adverse use are substantially the same as those which will pass the fee title to real estate. They must be adverse to the rights of the true owner under claim of right or color of title, continuous, and uninterrupted for the statutory period of time, with the knowledge and acquiescence of...