Richards v. Page Inv. Co.

• Decision Date: 09 September 1924
• Citation: 228 P. 937,112 Or. 507
• Parties: RICHARDS v. PAGE INV. CO.
• Court: Oregon Supreme Court

228 P. 937

112 Or. 507

RICHARDS v. PAGE INV. CO.

Supreme Court of Oregon

September 9, 1924

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by Stephen Richards against the Page Investment Company. From a decree for defendant, plaintiff appeals. Affirmed.

Warren E. Thomas, of Portland (Chamberlain, Thomas &amp Kraemer and O. W. Eastham, all of Portland, on the brief) for appellant.

Wallace McCamant, of Portland (McCamant & Thompson, of Portland, on the brief), for respondent.

BURNETT J.

This is a suit wherein the plaintiff alleges that he is the owner of an undivided half and the defendant is the owner of the other moiety of a certain tract of land and seeks to have the same partitioned between them.

By way of giving a history of his title, he avers in his complaint that on July 25, 1862, James B. Stephens and wife conveyed to Joseph Knott a tract of land in Multnomah county described in the complaint as bounded on the west by the east bank of the Willamette river, the title to which Knott held one-half for himself and one-fourth for each of his two sons, Levi Knott and A. J. Knott; that by certain legislation in 1872 (Laws 1872, p. 129) as amended in 1874 (Laws 1874, p. 76) and 1876 (Laws 1876, p. 69) the state of Oregon granted and confirmed to the owners of uplands abutting on the Willamette river all the land opposite such holdings between high and low water marks whereby Joseph Knott and his two sons became the owners in the proportions above mentioned of the property sought to be partitioned in this suit, and that plaintiff is the successor in interest of Joseph Knott to the fee-simple title of one half and the defendant owns the other half formerly belonging to the two sons.

The premises here involved are thus described:

"A piece or parcel of land situate in section No. 3, in township No. 1 south, range No. 1 east, of the Willamette Meridian, and more particularly described and bounded as follows: Beginning at the northwest corner of a one-acre tract of land (being the tract first hereinbefore described) formerly conveyed by J. B. Stephens to Joseph Knott, at a point 30 feet south of the south line of block No. 11 in East Portland (now within the corporate limits of the city of Portland) and 193 feet west of the east line of Water street in said East Portland, and running thence southerly along the westerly line of said one-acre tract 262 feet (more or less) to a point 30 feet north of the north line of block No. 2 in Stephens addition to said east Portland, and 164 feet west of the east line of said Water street; thence west (150 feet more or less) to the main ship channel of the Willamette river; thence northerly along the main ship channel 262 feet (more or less) to a point directly west of the place of beginning; thence east to the place of beginning; subject to easements for street purposes, as now claimed by the city of Portland; and excepting any portion of the premises extending easterly from said ship channel to ordinary low water mark of the Willamette river, and owned by the state of Oregon."

As to this tract, the complaint declares that on December 28, 1882 Joseph Knott conveyed his undivided half thereof to W. H. Andrus, who died seized thereof on August 6, 1902, leaving surviving him as his sole heir at law his daughter Daisy B. Andrus, now Daisy B. Eastham, the plaintiff's immediate grantor, and that the defendant is the owner of the other half.

The answer admits the conveyance, from Stephens to Joseph Knott and the latter's tenure of one-half for himself and one-fourth for each of his two sons, and further admits that by the legislation mentioned "the state of Oregon released and confirmed to said Joseph Knott, Andrew J. Knott and Levi Knott any and all right and title possessed by the state of Oregon in property" described in the deed from Stephens to Joseph Knott. All the plaintiff's averments of an estate in himself in the realty involved herein are traversed by the answer.

In its answer the defendant alleges that on March 1, 1877, Joseph Knott conveyed to his two sons, A. J. Knott and Levi Knott, all the land deeded to him by Stephens using the same western boundary employed by the latter, to wit, the bank of the Willamette river, and the execution and delivery of this conveyance is admitted by the plaintiff.

In substance, concerning the deed of Joseph Knott to his sons, the contention of the defendant is that its legal effect was to carry with it not only the upland extending to the bank of the river, as expressly stated therein, but also, by operation of law, the space west of the river bank, in front of the described upland and extending to low water mark, which space, as the pleadings admit, was granted and confirmed by the state to the three Knotts as the then owners of the upland.

On the other hand, the plaintiff maintains that by the proper legal construction thereof nothing was included in that deed outside of the specified boundaries mentioned therein, with the result that the father conveyed to the sons nothing west of the bank or high water mark of the river, leaving them as owners together of only one-half thereof.

Further defending, the answer narrates in substance that on March 1, 1877, Joseph Knott, from whom the plaintiff claims to deraign title, made, executed, and delivered to his two sons two deeds whereby he undertook to transfer to the sons all his estate in both tracts described in the complaint, to wit, the upland and the parcel of which the plaintiff seeks partition; that the sons immediately took possession of both tracts; that by mesne conveyances the defendant has succeeded to the title claimed by the sons under those two deeds; and that the defendant and its predecessors in interest continuously since March 1, 1877, have been in the open, hostile, notorious, and exclusive possession of the tract sought to be partitioned, claiming to own the same in severalty, asserting such claim against W. H. Andrus, his sole heir, Daisy B. Eastham, and her grantee the present plaintiff. In this affirmative defense the answer further recites that on December 17, 1884, W. H. Andrus, the present plaintiff's predecessor in interest in the parcel here involved, claiming by the same title the plaintiff now asserts, instituted an action in the circuit court of Multnomah county in which he demanded possession of the property; that on January 17, 1885, A. J. Knott and Levi Knott filed an answer in said action denying that Andrus had any interest in said tract and alleging that they themselves were the owners in fee simple thereof. The answer herein then goes on to state that on March 19, 1888, Andrew J. Knott and wife, together with the heirs and successors in interest of Levi Knott, then deceased, for the consideration of $9,000 made, executed, and delivered to James B. Stephens their warranty deed by which they conveyed to said Stephens the following described real property situated in Multnomah county, Or., to wit:

"Commencing 30 feet south of the southeast corner of block 11 in the city of East Portland; thence south along the west line of Water street in said East Portland to U street; thence west down U street to the Willamette river; thence north down said river to within 30 feet of the south boundary line of block 11; thence east parallel to and 30 feet distant from the south boundary line of block 11 to the place of beginning; containing one-half acre, more or less, including all riparian rights in the river in front of said land."

And that this deed was recorded in the deed records of Multnomah county, and the property therein described and conveyed expressly covered the realty here involved. The answer goes on to aver the execution and delivery of the following deeds to the property by the description last above set out at the dates and for considerations as follows: James B. Stephens to Frederick H. Page, February 20, 1889, consideration $15,000; Frederick H. Page to William G. Steel, September 20, 1892, consideration $30,750; William G. Steel to James Steel and George A. Steel, September 20, 1892, consideration $35,000; George A. Steel and James Steel to Mary L. Steel, March 1, 1893, consideration $40,000; Mary L. Steel to James H. Page, November 17, 1896, consideration $25,000; James H. Page to this defendant, June 5, 1909, consideration not stated. That all said deeds were seasonably recorded and were joined in by the respective spouses of the grantors. Thus far the allegations of the answer about the claim of conveyances extending from Stephens as grantee of A. J. Knott and heirs of Levi Knott to this defendant are admitted in the reply. The execution of the deed from the Knotts to Stephens is likewise admitted, but that it covered the land in dispute is denied.

Continuing the answer relates that beginning in 1898, James H. Page, as the owner, leased the entire property involved to various and successive tenants all of whom attorned and paid rent to him until his transfer of the tract to this defendant, to whom afterwards such tenants continued to attorn until the filing of the answer; that the tenants occupied the property exclusively and openly down to the ship channel in the river, putting the same to various uses such as a shipyard, railway dock, woodyard, and steel works; that neither the plaintiff nor any of his predecessors in interest have ever demanded from the defendant any accounting for the rents and profits collected by the latter for the use of the property nor offered to pay any of the taxes thereon; that the defendant in the years 1918 and 1919 constructed a fill on the property at an expense of $11,000, thereby greatly increasing its value; that otherwise, owing to the growth of the city of...