Rohner v. Neville

Decision Date25 October 1961
PartiesJohn Jacob ROHNER and Marion Rohner, husband and wife, Appellants, v. Frank NEVILLE, Respondent.
CourtOregon Supreme Court

H. M. Weatherford, Albany, for appellants. On the briefs were Weatherford & Thompson, Albany.

Robert Mix, Corvallis, for respondent.


GOODWIN, Justice.

Plaintiffs Rohner appeal from a decree denying their suit to quiet title to 51.9 acres of land. After trial, the court dismissed the suit because the complaint did not allege that the defendant was claiming an interest adverse to the plaintiffs. Such an allegation is required by ORS 105.605. Fildew v. Milner, 57 Or. 16, 20, 109 P. 1092. It does not follow, however, that the suit was properly dismissed.

There was no demurrer. In the absence of a timely demurrer, a pleading is to be construed liberally in favor of the pleader. Hill v. G & W Development Corp., Or., 363 P.2d 763. Thus construed, the allegations that the defendant Neville claimed title to the land and was interfering with the possession of the plaintiffs support an inference that the defendant claims an adverse interest in the disputed land. See Fildew v. Milner, supra, 57 Or. at page 20, 109 P. at page 1094. The trial court should have decided the case on the merits. By making a complete record, however, the trial court makes it possible for us to dispose of the suit without a further trial.

The Rohners purchased the land from one Ayers after the Willamette River cut a new channel and separated the land from the Ayers farm in Benton County. The same change of channel made the land contiguous to the farms of Rohner and Neville in Linn County. Figures 1, 2, and 3 on the accompanying sketch show the various routes taken by the Willamette River in modern times. It will be seen that in the original survey of 1854 the river was the boundary between Lots 5 and 7. The record tends to prove that the river followed the route shown in Figure 1 from 1854 until about the end of the Nineteenth Century. Some time before 1921, the exact year being immaterial for the purposes of this case, the river left its old channel to follow the route shown schematically in Figure 2. The condition at the time of trial is represented by Figure 3. This channel resulted from a breakthrough in 1950.


The documentary evidence as well as the testimony of engineers and lay witnesses reveals that the river during recorded history has been given to sudden and violent changes of channel. Witnesses described the various cut banks left by past changes in the channel. Some of these cuts range from 4 to 21 feet in height. The field in the middle of the disputed land is virtually a continuation of the fields lying across the river. Old surveys show substantial changes in the channel which could have been made only as the result of the cutting action of flood waters. Other than the presumption of gradual change which counsel mentioned in their briefs and arguments, 1 there was no evidence that any substantial change in the channel of the river after 1854 occurred by reason of the gradual deposit of soil against Lot 7. On the contrary, the evidence indicates that the only changes in the channel of consequence in this case were avulsive. It follows that the record title to land resected by the river follows the boundaries established by the official survey rather than the migratory channel of the river. Accordingly, Lots 4, 5, 6 and 7 retain their original boundaries. Hirt v. Entus, 37 Wash.2d 418, 224 P.2d 620; Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176; 4 Tiffany, The Law of Real Property (3d ed., 1939) § 1222. For a recent discussion of accretion, see Annotation, 54 A.L.R.2d 643. This being the case, Neville retains record title to the disputed portions of Lots 4 and 6 no matter how these lots may have been sectioned by the movements of the river.

The principal issue is whether the Rohners can show an interest superior to the paper title of Neville in those portions of Lots 4 and 6 which they now claim. The Rohners alleged in their complaint that they are the owners of the disputed land by reason of the adverse possession thereof by their predecessors in title. We must now examine that contection.

From a date prior to 1921, and until 1950, the location of the Willamette River was that schematically presented in Figure 2. Thus, it can be seen that for many years before 1950 the disputed land was contiguous with Lot 7 on the left, or west, bank of the river. During the same period, the land was cut off from and was not used by the owners of Lots 4 and 6. In 1932, Lot 7 was conveyed to one Chilcote, and shortly thereafter an undivided half was conveyed to one Davis. We will refer to this ownership as the Chilcote-Davis interest. Chilcote and Davis had record title to all material parts of Lot 7 from 1932 until 1951.

The Rohners' evidence shows that Chilcote and Davis, while owners of Lot 7, farmed parts of the disputed land, used a portion for grazing, built roads to it, and otherwise made regular use of the property all of which use was open, notorious, and hostile to any claim of right in any other person. Springer v. Durrette et ux., 217 Or. 196, 342 P.2d 132. We find that the rights of Neville in the disputed lands were fully extinguished as against the Chilcote-Davis interest by the running of the prescriptive period.

It follows that Chilcote and Davis acquired a good title to the disputed land and were the owners thereof prior to their deed of 1951. They could have conveyed this land to Ayers in the same deed employed to convey 'Lot 7'. In 1951, after the Willamette River had cut off the ox-bow which contained the disputed land and the river channel was as depicted in Figure 3, Chilcote and Davis conveyed 'Lot 7' to Mrs. Chilcote's cousin, Ayers. No part of Lots 4 or 6 were described in the deed. In his testimony, Ayers stated that he believed that he was acquiring from Chilcote-Davis not only all of Lot 7 as surveyed in 1854, but also all the land now in question, which Ayers said he thought was encompassed by the description 'Lot 7'. We do not have direct evidence as to the intent of the Chilcote-Davis grantors. There is, however, circumstantial evidence that the Chilcote-Davis grantors intended to convey the disputed tract to Ayers. As noted above, they had always treated the ox-bow as part of their land and all the property as a single tract. The tax records would seem to indicate that the Chilcote-Davis grantors believed that this single tract to which they laid claim was encompassed in the description of 'Lot 7'. Furthermore, they began farming this land under a deed of 'Lot 7'. Ayers had labored upon the disputed tract and considered it part of 'Lot 7'. His grantors knew that he had worked the land as a single tract. From these facts we may infer that the Chilcote-Davis grantors intended to convey the property in question when they deeded 'Lot 7' to Ayers. No evidence was offered in support of a contrary inference. In 1954, Ayers conveyed 'Lot 7' to Mr. Rohner, excepting, however, portions thereof remaining on Ayers' side of the river. There is no doubt that Ayers intended to convey and Rohner to acquire the land in question, since Ayers and Rohner together went on the land and measured it.

The deeds from Chilcote and Davis to Ayers and from Ayers to Rohner, by omitting a description of the disputed land, failed to correspond to the understanding of the parties. If this were a dispute between Rohner and Ayers, or between Ayers and the Chilcote-Davis interests, reformation of their respective conveyances might well be available. O'Brien et al. v. Michels et ux., 222 Or. 399, 352 P.2d 735; Zink et ux. v. Davis et ux., 203 Or. 49, 277 P.2d 1007; Ramsey v. Loomis, 1877, 6 Or. 367. Reformation, of course, is out of the question here because the necessary parties have not been joined, but this does not mean that the court may not decide the rights of the parties before it. The Rohners have an equitable claim derived from the possessory rights of their predecessors, and it is this interest which we must weigh against the defendant's paper title.

Plaintiffs in a puiet-title suit need not show that their title is good as against all the world; rather they meet their burden of proof when they show a title which is superior to that of the defendant who has asserted an adverse claim. Slater v. Reed, 37 Or. 274, 60 P. 709. Courts have frequently said that a plaintiff must prevail on the strength of his own title rather than upon the weaknesses of the defendant's title. See, e. g., Hogue v. Bourgois, N.D. 1955, 71 N.W.2d 47, 54 A.L.R.2d 633, 641. This general proposition is found in our own cases, e. g., Jones et al. v. Jackson et al., 195 Or. 643, 659, 246 P.2d 546, but it does not require the plaintiff's title to be above reproach. Indeed, even before the time has run as against the true owner, the possessor has an interest which the law will protect as against all others. In actions at law we have said, 'In this state the rule is fixed that bare possession is a sufficient interest in land to enable one ousted therefrom to eject a...

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