Pearson v. Dryden

• Decision Date: 13 January 1896
• Citation: 28 Or. 350,43 P. 166
• Parties: PEARSON v. DRYDEN.
• Court: Oregon Supreme Court

43 P. 166

28 Or. 350

PEARSON v. DRYDEN.

Supreme Court of Oregon

January 13, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Ejectment by Samuel Pearson against William H. Dryden. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

E Mendenhall, for appellant.

C.S. Hannum, for respondent.

BEAN C.J.

This is an action to recover the possession of real property. The complaint is in the usual form, alleging title and right to possession in plaintiff, and a wrongful withholding by the defendant. The answer denies the allegations of the complaint, and sets up title by adverse possession in the defendant, which is denied by the reply. The trial resulted in a verdict and judgment in favor of plaintiff, and defendant appeals.

From the pleadings and evidence, it appears that plaintiff and defendant have been the owners of adjoining tracts of land in Multnomah county for many years; that in 1877, at plaintiff's request, Mr. Burrage, the then county surveyor, surveyed out and marked a line between the premises of the respective parties for a division line; that immediately thereafter a fence was built along such line by the parties, which has been maintained ever since as a division fence; that each party occupied, cultivated, and improved their respective lands up to the fence, claiming to own to the line so marked, without objection from the other until 1890, when another line was run by Hurlburt, the then county surveyor, differing from that formerly run by Burrage whereupon the plaintiff, for the first time, claimed to own the land between the two lines which had been inclosed and occupied by the defendant, and subsequently brought this action to recover possession thereof.

On the trial, the court, among other things, charged the jury that "the answer sets up title by adverse possession; that is open, notorious, and adverse possession for a period of ten years consecutively. You have heard the evidence concerning that matter. It is a general rule however, that a possession that begins by consent which has its inception by license can never ripen into adverse title until such possession has returned to the party from whom the license comes, and then commences anew." It is contended by the defendant that, although this instruction may be correct as an abstract proposition of law, the court erred in giving it in this case, because it has no application to any issue therein; and in this, we think, he is correct. There was no question of license in the case. It was admitted by plaintiff all through the trial that defendant was and had been in the exclusive, undisputed possession of the tract in dispute from the time of the Burrage survey, in 1877, up to 1890, when the Hurlburt survey was made, under the belief of both parties that it belonged...