Pugh v. Spicknall

• Decision Date: 19 October 1903
• Citation: 73 P. 1020,43 Or. 489
• Parties: PUGH et al. v. SPICKNALL.
• Court: Oregon Supreme Court

73 P. 1020

43 Or. 489

PUGH et al. v. SPICKNALL.

Supreme Court of Oregon

October 19, 1903

Appeal from Circuit Court, Marion County; R.P. Boise, Judge.

Action by Joanna Pugh and another against Elizabeth Spicknall. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

This is a suit to enjoin the prosecution of an action at law. The facts are that, plaintiff's father having died seised of certain real property in Marion county, 40 acres thereof were set apart to her mother, the defendant, as her dower, the reversion thereto being vested in the plaintiff, her brother and three sisters. In October, 1891, the defendant leased the land so assigned to her, for the term of five years, to the plaintiff, who entered into possession and built a small house thereon, in which she lived with her family. The plaintiff, before the expiration of the term of her lease secured the interests of her brother and two of her sisters in the land, and thereupon voluntarily partitioned the premises with the third sister, assigning to her the north eight acres and about one acre in a triangular form in the southeast corner, near which stood a house in a three-acre garden, used as a residence by her mother; the remainder of the premises being then covered with brush and timber. After plaintiff secured said title, she erected a good dwelling house and other buildings on the land, put up fences thereon and cleared and cultivated about five acres thereof. Her brother, having returned to reside with her mother, began cutting said timber, to prevent which plaintiff appealed to the court, and secured a decree perpetually enjoining him from committing further waste. Her mother thereupon commenced an action against her to recover the possession of the 31 acres reserved in said partition, alleging herself to be entitled to the possession thereof, of which she had been deprived for more than six years, to her damage in the sum of $300. An answer having been interposed to the complaint in the action, the plaintiff filed the complaint herein in the nature of a cross-bill, setting up the facts hereinbefore detailed, and averring that before the expiration of said term of lease it was her intention to remove from the premises, but at her mother's request she refrained from doing so, and at her solicitation purchased said reversionary interests in pursuance of an agreement entered into with her mother, whereby it was stipulated that the latter should occupy the said house and garden and have a common right of pasturage on said premises and the use of the water of the well thereon, and that plaintiff was to have the full and absolute use of the remainder thereof, free from said dower estate, and to live upon said land, that she might be near her mother, and care for her in her sickness; that, relying upon such solicitation and agreement, the plaintiff purchased said interests and improved the property. The allegations of the cross-bill having been denied in the answer thereto, a trial was had, resulting in a decree permitting plaintiff to remain in possession of all the 31-acre tract except the said garden, and that each party have a common right of pasturage and the use of the water of the well on the premises, from which decree the defendant appeals.

John Bayne and W.H. Holmes, for appellant.

L.K Adams, for respondents.

MOORE C.J. (after stating the facts).

The plaintiff, as a witness in her own behalf, testifies that on October 3, 1891, she leased, for a term of five years, her mother's farm, including said 40 acres, stipulating to pay as rent therefor one-third of the crops grown thereon that in July, 1896, intending to leave the premises at the expiration of the lease, she sought to buy other property with a view of making her home elsewhere, and for that purpose went with her mother to examine a tract of land offered for sale, but desiring the plaintiff to remain on the premises, so that she might be near her and care for...