Moore v. Fowler

• Decision Date: 28 March 1911
• Citation: 58 Or. 292,114 P. 472
• Parties: MOORE v. FOWLER et al.
• Court: Oregon Supreme Court

114 P. 472

58 Or. 292

MOORE v. FOWLER et al.

Supreme Court of Oregon

March 28, 1911

Appeal from Circuit Court, Multnomah County; E.C. Bronaugh, Judge.

Action by Blanch McN. Moore against J.L. Fowler and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The plaintiff complains of Fowler, McDaniel, Cole, Peterson Fitzgerald, and Cameron, charging them with trespass upon her inclosure in pursuance of a conspiracy among them. The part imputed to Cameron and Fitzgerald was that the former as district attorney and the latter as his deputy counseled the others to commit the trespass and promised them immunity from prosecution. When the plaintiff rested her case, the court entered a judgment of nonsuit as to Cameron and Fitzgerald concerning which no error is assigned. Hence no further notice will be taken of them and when defendants are hereinafter mentioned it will mean the other four defendants. The complaint alleges, in substance, that continuously for more than 14 years prior to the commencement of the action as against all persons whomsoever, the plaintiff and her predecessors in title were lawfully possessed of and owned a parcel of land containing 10 acres, surrounded by a fence also belonging to them, being 40 rods square, the southeast corner of which is coincident with the southeast corner of the W. 1/2 of the N.W. 1/4, section 15, township 1 S., range 2 E., W.M. The pleadings agree that the four defendants reside not far from plaintiff's close, and are reputed owners of separate tracts within a platted district known as "Delashmutt and Oatman's Little Homes Subdivision No. 4," which is adjacent to the plaintiff's premises. It is admitted that there is a public road on the south side of plaintiff's tract and on the west side an alley or narrow street laid out in the "Little Homes" tract. The gravamen of the charge is that on the night of August 4, 1908, in pursuance of their conspiracy the defendants tore down plaintiff's fence on the west side of her inclosure, and afterwards, as often as she restored it, they again tore it down, their purpose being to force her to set it over on her land far enough to make the alley as wide as it is elsewhere to the northward in "Little Homes." The plaintiff alleges that her orchard growing upon the premises was thereby exposed to stock running at large, which browsed upon the trees and otherwise injured them, on account of all which she was damaged in the sum of $2,500. The answer denies the plaintiff's ownership, the conspiracy, and the grievances complained of. For new matter it is alleged that the "plaintiff and her predecessors in interest are and have been for a number of years last past the owners of a tract of land containing 10 acres, situated in section 15, township 1 S., range 2 E., in Multnomah county, Or., lying adjacent to Delashmutt and Oatman's Little Homes No. 4." In substance, they further contend by their allegations that the plaintiff and her predecessors maintained a fence in and upon a street or highway which they claim was dedicated on the west side of her tract, and that, on her having refused to remove the fence, "these defendants, acting under advice of counsel, quietly and peaceably removed said fence which so obstructed said public street and public highway as to prevent the same from being used by the public and by these defendants without any damage to the plaintiff." The reply traverses materially the other allegations of new matter in the answer. No part of the territory mentioned in the pleadings is within the limits of any city or town. At the close of the defendants' testimony, the court directed a verdict for the defendants upon which a judgment was rendered. The plaintiff appeals.

Carter & Dufur, for appellant.

Beach & Simon, Roscoe C. Nelson, and John F. Logan, for respondents.

BURNETT J. (after stating the facts as above).

It is conceded that Delashmutt and Oatman were at one time the owners of land, including the 10-acre tract in question, and that on October 10, 1885, they conveyed the tract by metes and bounds to one Hattie Murtha by a deed in which, at the end of the description of the land, occur these words "Containing 10 acres, reserving a strip of land off and from the west side 30 feet in width, which is dedicated for a public roadway." This description and reservation appears to have been used in all the conveyances by plaintiff's predecessors in title from the Murtha deed down to plaintiff. She gave evidence tending to show that one of her predecessors, Louis Kettler, bought the tract in 1893 when it was all in timber and brush except a very small portion; that he had it surveyed by his deed, cleared, and fenced it according to the survey in 1894; that the fence was maintained on the same line until it was torn down by the defendants; that Kettler set out the whole tract to fruit trees, and it was so used as an orchard continuously until the trespass complained of. The evidence tends to show a complete hain of title under the same inclosure from Delashmutt and Oatman down to and including the plaintiff. As against the denials of the answer this was sufficient evidence to take the case to the jury under the authority of Caufield v. Clark, 17 Or. 473, 21 P. 443, 11 Am.St.Rep. 845, and analogous authorities, to the effect that adverse occupancy of land for the statutory period under claim of right, although by mistake as to the true boundary, will operate to confer title by possession. Even conceding all that the defendants claim as to the dedication, yet the plaintiff...