Longview Fibre Co. v. Johnston

• Decision Date: 12 December 1951
• Citation: 238 P.2d 722,193 Or. 385
• Parties: LONGVIEW FIBRE CO. v. JOHNSTON.
• Court: Oregon Supreme Court

Page 722

238 P.2d 722

193 Or. 385

LONGVIEW FIBRE CO. v. JOHNSTON.

Supreme Court of Oregon.

Dec. 12, 1951.

Warde H. Erwin, of Portland, argued the cause for appellant. Lee A. Ellmaker, of Portland, filed a brief for appellant. A supplemental brief was filed by Boyd, Ferris & Erwin, of Portland.

Carl E. Davidson, of Portland, argued the cause for respondent. With him on the briefs was Walden Stout, of Portland.

Before BRAND, C. J., and HAY, LUSK, WARNER and TOOZE, JJ.

HAY, Justice.

This is a suit to enjoin defendant from trespassing upon plaintiff's real property and cutting, removing, or injuring any timber or trees thereon, and for damages.

The complaint alleges that plaintiff is the owner and in possession of the east half of the east half of section 9, township 4 north, range 5 west of the Willamette Meridian, in Columbia county, Oregon; that such property contains large quantities of valuable timber; that, beginning about September 17, 1947, and continuing to the date of the filing of the complaint (which was April 29, 1949), defendant wilfully, intentionally, and unlawfully trespassed on said property, constructed and used a logging road thereon, cut and removed timber therefrom, and converted such timber to his own use; and that the timber removed from said property was of the reasonable value of $4,500. Treble damages was demanded under § 8-406, O.C.L.A., besides $100 as damages for incidental injury to the real property. As grounds for equitable relief, it was alleged that defendant had refused, on demand, to cease and desist from such trespass, and that he is financially irresponsible. No objection to the equitable jurisdiction was raised.

Defendant answered by general denial. After a hearing, which involved determination of the true eastern boundary of plaintiff's property (which is also the western boundary of land owned or occupied by defendant), the court found for plaintiff, issued an injunction accordingly, and awarded plaintiff damages in the sum of $2,596, with costs. Defendant appeals.

The appeal, according to defendant's brief, raises the following questions:

1. Was the northern section corner common to plaintiff's land and land occupied by defendant a lost corner?

2. Was it proper, in locating the boundary line between plaintiff's and defendant's lands, to make use of the theory of proportionate measurement?

3. Did plaintiff, in surveying for the purpose of establishing such boundary line, commence its survey at the nearest authentic corner?

All references to numbered sections herein apply to such sections in township 4 north, range 5 west of the Willamette Meridian.

Error is predicated upon the refusal of the trial court to accept the so-called Mills bearing tree as evidencing the location of the true quarter corner between sections 3 and 10.

One T. B. Mills, about the year 1902, made a homestead filing upon the northeast quarter of section 10. As a witness for defendant, he testified that he lived upon his homestead three or four years, after which he relinquished it. Since then, he has not resided in that vicinity. In locating the boundaries of his homestead, he had the assistance of his two brothers. None of the party was a qualified surveyor. They ran a line from a corner common to sections 1 and 12 to a point which they took to be the northeast corner of section 9, a distance of 'maybe two miles.' Guided by the government field notes, they found near the quarter corner on the north line of section 10 a 70-inch fir tree which had the initials 'B. T.' marked on it, and near it a small alder tree which, Mills said, was supposed to be one of the tie-in trees. The fir bore evidences of having suffered damage from burning in an old fire, but it was still alive. It had been 'chopped' (blazed?) on the south side. They measured from a point which they considered to be the northeast corner of section 10 to the bearing tree. He does not remember what monument was on such northeast corner, but thinks they found it 'when going in there.'

Mr. Mills testified further, in response to questions by the trial judge, that he had recently identified the same tree, but that he recognized it only by the contour of the ground and the location of the tree from where his homestead cabin had stood.

Mr. R. B. Shefler, county engineer of Clatsop County, a witness for defendant, testified that he made a survey of the northern boundary of section 10. He identified a tree which he said was supposed to be one of the bearing trees for the original quarter corner between sections 3 and 10. He described it as a yellow fir 50 by 54 inches in diameter. It was badly burned; the bark and all the sapwood was gone. In his opinion, the tree might at one time have been as much as 26 inches larger. He was unable to find any evidences of an alder tree having been in the vicinity. There were no marks upon the fir bearing tree; it was badly burned. He gave it as his opinion that it was the quarter corner bearing tree described in the government field notes, basing his opinion upon the following reasons: The tree was described to him by Mills, whose homestead cabin had stood some seven or eight hundred feet on a line south of the tree; the tree was on a ridge, was the right size, and stood within 17 feet east and west and about 20 feet north and south of a point two miles west of the quarter corner between sections 1 and 12, which he considered to be a very close check for that sort of country in retracing a section line. He located the northwest corner of section 10 by chaining two and one-half miles west from a corner 'reputed to be good and verified by the presence of an old stump and a pipe and pointed out by various people as being a good corner on the bank of the Nehalem River,' and accepted by him as representing the quarter corner between sections 1 and 12. In running this line, he claimed that he verified the quarter corner represented by the fir bearing tree.

Mr. John E. Eilertson, a registered engineer, former county surveyor and county engineer of Columbia County, testified for defendant. He said that T. B. Mills showed him 'a certain bearing tree; a spar tree, and which is supposed to be the bearing tree by those people who have lived there in that neighborhood or in that area.' He used this tree as the starting point of a survey. He would not say definitely that it evidenced the location of the quarter corner on the north boundary of section 10, but, from the distance between it and various creeks and brooks shown on prior surveys, it should be. The field notes called for a bearing tree 70 inches in diameter. The spar tree which he found was a large tree, but he didn't think it would go 70 inches. It had been burned severely. It had been used as a spar tree in logging operations. He located the northwest corner of section 10 by a post that had been placed by Mr. Shefler, but found no other markings evidencing the correctness of such location, although, on checking it against the government field notes, he 'found it corresponded fairly good.' He found no markings at the quarter corner between sections 9 and 10. He used a hand transit, and chained the distances, in making his survey. He would not say that the tree shown him by Mills was a bearing tree, although it was likely to be. It could have been, and the blazes could have been destroyed by fire. There were no marks on it that you could definitely identify. On cross-examination, he said that he did not know how Shefler set the stake (post) indicating the nor northwest corner of section 10; he hadn't talked to Shefler.

Mr. R. S. Lindsey, who formerly owned all of section 10 and homesteaded the southeast quarter thereof, testified for defendant. He said that his uncle, a homestead locator, had located for him the quarter corner between sections 10 and 11, which was evidenced by two marked bearing trees. This was about 1904. He knows the former location of these trees, but they no longer exist.

Plaintiff points out that the government field notes located the bearing tree between sections 3 and 10 as being between 4 and 5 chains east of the ridge, whereas the tree identified by Mills was west of the ridge; there is no evidence of the existence of an alder tree 8 inches in diameter which is called for as a tie-in by the government field notes, and which Mr. Mills testified to having observed when he filed on his homestead. On the contrary, there is evidence that a fir tree had stood at that point, such evidence being a fir stump crater three feet deep. The field notes placed the quarter corner between sections 3 and 10 at a point 5 chains east of the ridge, while the tree claimed by defendant as the bearing tree is approximately 350 feet west of the ridge. There are no marks on the tree identified by Mills indicating that it was ever a bearing tree. In the absence of more definite location, the proof that the tree in question was the actual bearing tree rests almost entirely upon the testimony of witness Mills, who saw it on one occasion only, and that approximately 48 years prior to the hearing.

'A lost corner is a point of survey whose position can not be determined, beyond reasonable doubt, either from traces of the original marks or from acceptable evidence or testimony that bears upon the original position, and whose location can be restored only by reference to one or more interdependent corners.' Rule 1020, Rules of the General Land Office entitled Restoration of Lost or Obliterated Corners, 1939.

In establishing a lost corner, the unvarying rule is that the survey must start at the nearest 'well-defined and unquestioned starting point on the original survey.' Clark on Surveying and Boundaries, 2d ed., § 377; Shaver v. Adams, 37 Or. 282, 286, 60 P. 902; Seabrook v. Coos Bay Ice Co., 49 Or. 237, 242, 89 P. 417; Kincaid v. Peterson, 135 Or. 619, 626, 297 P. 833. We are of the opinion that the point from which Mr. Shefler's survey...