Oregon Ry. & Nav. Co. v. Hertzberg

• Decision Date: 16 October 1894
• Citation: 37 P. 1019,26 Or. 216
• Court: Oregon Supreme Court
• Parties: OREGON RY. & NAV. CO. v. HERTZBERG.

37 P. 1019

26 Or. 216

OREGON RY. & NAV. CO. v. HERTZBERG.

Supreme Court of Oregon

October 16, 1894

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by the Oregon Railway & Navigation Company against Charles Hertzberg to recover possession of land, for damages for removing earth therefrom, and for the rent thereof. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

A. Schutz, for appellant.

W.W Cotton, for respondent.

MOORE J.

This is an action to recover possession of a portion of block 188 in the city of Portland, damages for removing earth and stone therefrom, and for the reasonable value of the rents thereof. The complaint is in the usual form, alleging ownership in fee and right of possession of said premises by mesne conveyances and possession by plaintiff and its predecessors for more than 15 years under color of title and claim of ownership in fee. The defendant denied all the material matters alleged, except the allegation of possession, and for a separate defense in substance alleged that the title in fee simple absolute to said premises had never been granted by the United States with legal validity to any person, but that it is still in the United States, subject, under the donation act of congress, to the preferred rights of the heirs of Elizabeth Thomas, and that this right had never been asserted by any of said lawful heirs; that the defendant had taken possession of, established his residence, and made valuable improvements on said premises as a homestead settler, in order to procure the title thereto from the United States. And for a further defense he alleged that the land in dispute was dedicated by Elizabeth Thomas, the original settler, to the use of the public as a road, and that it had been used as such for a period of more than 10 years prior to defendant's occupancy thereof. The reply put in issue all the material allegations of new matter in the answer, and, issue being thus joined, the trial thereof proceeded before the court and a jury, and, after hearing the evidence, and the arguments of counsel, the court directed the jury to find a verdict in favor of the plaintiff, the counsel for both parties agreeing that its damages should be one dollar. Upon the verdict thus ordered and returned by the jury, judgment was rendered for the plaintiff, and from this judgment the defendant appeals, and specifies several errors upon which he relies for its reversal. The alleged errors consist of objections to the admission and rejection of evidence and to the court's direction to the jury to bring in a verdict in favor of the plaintiff.

The record shows that the plaintiff, to maintain its action introduced the following evidence: A patent of the United States to A.J. Knott; the deed of A.J. Knott and wife to the South Portland Real-Estate Association, and the deed of the South Portland Real-Estate Association to the Oregon Railway & Navigation Company, dated June 25, 1880, each instrument conveying, with other property, the premises in controversy. The plaintiff also offered in evidence the judgment roll of the case of Silver v. Ladd, which showed that the suit was begun and prosecuted to final decree in the circuit court of the state of Oregon for Multnomah county. It also appears therefrom that one Elizabeth Thomas, a widow, on or about October 1, 1851, in pursuance of the provisions of the donation act of congress, approved September 27, 1850 established her residence upon a tract of the public lands of the United States, and, having filed her notification to hold said premises as her donation land claim, continued to reside thereon until some time in the year 1857, when she died intestate, leaving as her sole heir Finice Caruthers, her son, who, after the death of his mother, took possession of said premises, and continued to reside thereon until about September 1, 1860, when he died intestate, leaving neither widow nor issue. That C.S. Silver was appointed and duly qualified as administrator of the estate of said Finice Caruthers, deceased, and as such took possession of said premises, and leased them to one A.L. Mushell. That A.J Knott and R.J. Ladd, having each obtained patents from the United States, under the pre-emption law, for portions of the tract of land embraced in the donation entry of Elizabeth Thomas, commenced actions against said A.L. Mushell, the tenant, to recover possession of the premises described in their patents, and while said actions were pending said C.S Silver commenced a suit against said Ladd and Knott to restrain them from prosecuting their said actions, and to cancel and set aside the patents issued to them by the United States. A decree was rendered in said suit dismissing plaintiff's complaint for the reason that said Elizabeth Thomas was not a person entitled to take lands under any provision of the donation act (Act Cong. Sept. 27, 1850, 9 Stat. 496). It was stipulated between the parties hereto that a decree in the case of Silver v. Ladd, supra, had been entered in the records of the supreme court of the United States (7 Wall. 219) substantially in accordance with the opinion rendered in said suit therein, and that said stipulation might be used in lieu of and offered in evidence as a certified copy of such decree, but that said stipulation was not to be construed as an admission that any mandate had ever been issued upon said decree from the supreme court of the United States to the supreme court of this state, nor by this court to the circuit court of Multnomah county, nor an admission of the regularity of any appeal or of any fact other than that there had been an entry of such decree in the said court. It appears from said stipulation that said decree on appeal to this court was affirmed, and that a writ of error was taken to the supreme court of the United States which reversed the decree of this court (Silver v. Ladd, supra); but, no mandate having been filed or entered in the records of the circuit court, there was no competent evidence before it to show that the said decree was in fact reversed. It will thus appear from the evidence introduced at the trial that the plaintiff established a complete legal title to the premises in controversy. The defendant sought to impeach the United States patent to Knott by offering in evidence a certified copy of a letter from the assistant commissioner of the general land office, dated April 5, 1887,--more than 20 years after the patent was issued,--directed to the register and receiver of the land office at Oregon City, Or., advising them that the...