Wampler v. Sherwood

Decision Date08 February 1978
Citation574 P.2d 319,281 Or. 261
PartiesFloyd H. WAMPLER and Jean V. Wampler, husband and wife, Respondents, v. Hugh M. SHERWOOD, Jr., and Marguerite F. Sherwood, husband and wife, Appellants.
CourtOregon Supreme Court

Jack A. Gardner, of Gardner, Honsowetz & Johnson, Eugene, argued the cause and filed the briefs for appellants.

Donald A. Bick, of Bick & Monte, Eugene, argued the cause and filed the brief for respondents.

Before DENECKE, C. J., TONGUE and LINDE, JJ., and RICHARDSON, J. Pro Tem.

TONGUE, Justice.

This is an action for timber trespass. The case was tried before a jury, which returned a verdict in favor of plaintiffs, assessed damages in the sum of $10,078.03 and, in response to a special interrogatory, found that the actions of the defendants were willful. Judgment was then entered against defendants Sherwood for $25,734.09, representing treble damages, less an offset for amounts recovered from other defendants. Defendants Sherwood appeal. We affirm.

Defendants' principal assignment of error is that the trial court erred in denying defendants' motions for nonsuit, directed verdict and judgment n. o. v. because the evidence was insufficient to establish a boundary line by "acquiescence" or "practical location." 1

Because this is an action at law, and because of Art. VII (Amended) § 3 of the Oregon Constitution, we must affirm the verdict of the jury if there is any evidence to support it. Also, in determining whether there is any evidence to support the verdict, we must view the evidence in the light most favorable to the plaintiffs and give them the benefit of all conflicts in the evidence and of all inferences which the jury could reasonably have drawn from the evidence. 2 Viewed in that light, the jury could have found that the facts were as follows.

The property involved in this case is near Florence, in Lane County. The area in dispute is hilly and covered with trees. The property north of the disputed boundary line had been owned for some 60 years by Kenneth McCornack, who sold it to defendants in 1971. The property to the south of that line was owned since 1951 by Herbert Houghton, who sold it to plaintiffs in 1969.

Mr. McCornack testified that "in the middle 50's sometime" he had a survey of the south line of his property made by William Brayton, a surveyor, because he wanted to sell some timber and "I wanted to know where my line was." He assisted with the survey "as a chainman and he (Brayton) running the transit." He testified that the line ran eastward from a large spruce tree near the county road; that the spruce tree was the only "monument" on the line; that survey stakes were "put out" along the line, but that no "monument" was set at the west end of the line. Mr. McCornack also testified that he relied upon that survey in that he "went ahead and logged up to my line," starting some 300 to 400 feet west of the spruce tree and extending "nearly the full length of my ownership" and that there was then a "clearly visible cutting line."

Mr. Houghton testified that when he bought the land to the south of that line in 1951 "it was a known fact that the spruce tree had been honored as the boundary line for a number of years" and that he was also told at that time by Mr. McCornack that "he had honored the tree as the boundary" and that it was while he owned the property that Mr. McCornack did "a lot of logging there" north of that line for a "number of years" and never disputed that the line ran through the spruce tree.

Mr. Houghton also testified that in about 1957 the Ross brothers wanted to log along the west side of his property and wanted to "establish a cutting line" along that "boundary"; that, as a result, surveyor Brayton was again engaged; that the survey work was done by Brayton, the Ross brothers and himself and that a large cedar stake was then set at the northwest corner of his property. He also testified that Mr. Brayton then showed him where the north line of his property "came out" at the spruce tree. According to Mr. McCornack, Mr. Houghton then told him that "his (Houghton's) survey and my survey (the previous Brayton survey) were the same" and that "his (Houghton's) line and yours (McCornack's) were the same."

The Ross brothers in 1957 logged the timber west of the west line of Houghton's property "right up to the boundary," leaving a visible "corner," when taken together with the logging by Mr. McCornack along the north line of the Houghton property. Mr. Houghton also testified that he relied upon that line as the north boundary of his property in building a mill on his property some distance to the south of that line in 1951. In 1969 Mr. Houghton sold his property to plaintiffs Wampler. Mr. Houghton testified that he then told plaintiffs "just exactly what Brayton had indicated to me where the boundaries were." Mr. McCornack also testified that when plaintiff bought the property they came to him and "asked where my survey line was" and he "told him that spruce tree by the road was where the survey line was."

Mr. Wampler also testified that when he purchased the property from Mr. Houghton he went to see Mr. McCornack "because he had the line surveyed" and that "we went down there and talked about it and he said it was straight through the spruce tree" and "verified" what Mr. Houghton had told him about the location of that line. Mr. Wampler also testified that the spruce tree was marked with an old surveyor's "blaze"; that he and Mr. Houghton also went to the northwest corner of the property and could not find the cedar stake; that there had been a slide in that area, causing him to suspect that the cedar post had been "wiped out," but that at that time "you could stand and look at this from anywhere and see that there was a square corner of timber there that had never been logged."

In 1971 Mr. McCornack sold his property to defendants. Defendant Hugh Sherwood was a real estate broker and bought the property to log the timber on it and later have it subdivided for residential purposes. Mr. McCornack testified that at that time Mr. Sherwood "asked me where my survey line was" for the south line of the property; that they then went "down the road," and that he "pointed out this spruce tree" to Mr. Sherwood and told him "that's where the line crossed."

Defendant Sherwood then hired Mr. Robert Manseth, a surveyor, to survey the south line of the property. Mr. Manseth was unable to find one of the monuments described in the original government survey of that section of land, made in 1878. As a result, he located that corner by a practice known to surveyors as "proportionment," based upon measurements from other monuments found by him. He then proceeded to survey the south line and found it to be approximately 120 feet south of the Brayton line and the spruce tree and running through the mill built by Mr. Houghton. He conceded that the accuracy of his survey rested upon the monuments which he was able to find. It does not appear whether in the "middle 50's" Mr. Brayton found the monument which Mr. Manseth was unable to find in 1971.

Mr. Sherwood then went to see Mr. Wampler and informed him of the results of the Manseth survey. Mr. Wampler was understandably "upset." The two of them then went to see Mr. McCornack, who again said that the line went through the spruce tree, rather than 120 feet further south, as under the Manseth survey, and said (speaking of the "Brayton line") that "he had run it as a chainman for Brayton. And as far as he was concerned that had been the true monument for years, and that all the neighbors had agreed to it for a good number of years. Everybody cut timber according to the Brayton survey."

Mr. Sherwood then gave instructions to the logger to cut timber as far south as the "Manseth line" and said that he would "stand back" of the Manseth survey. Mr. Wampler then filed this action.

At the conclusion of the testimony, and at a conference between the court and counsel, the requirements for proof of the establishment of a boundary by "acquiescence" or "practical location," were discussed, as stated in Harris et ux v. Backus et al, 212 Or. 695, 321 P.2d 315 (1958). Agreement was then reached that this issue be submitted to the jury under the following instruction, to which neither party took exception:

"An oral agreement between owners of adjoining tracts of land fixing a dividing boundary, the location of which was honestly disputed, or was indefinite or uncertain, becomes enforceable when the agreed boundary, for a period of 10 years or more, has been marked or has been recognized in the subsequent use of the tracts, or when other action has been taken by either party in reliance on the agreement."

Although appellants in their brief on this appeal also cite other cases and authorities and would state these requirements in a somewhat different manner, we believe that the rule as stated in this instruction, to which both parties agreed, became binding upon both of them as the "law of the case." 3 Upon examination of the record, we also believe that there was evidence in this case from which the jury could have properly found that the requirements of the rule as stated in that instruction...

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9 cases
  • Kennedy v. Wheeler
    • United States
    • Oregon Supreme Court
    • 11 Diciembre 2014
    ...but not general damages, trial court correctly rejected verdict and reinstructed jury).5 Correctly understood, Wampler v. Sherwood, 281 Or. 261, 574 P.2d 319 (1978), another case on which defendant relies, is in accord. In Wampler, the question was whether the trial court had erred in grant......
  • Olsen v. Deschutes County
    • United States
    • Oregon Supreme Court
    • 25 Enero 2006
    ...made that argument for the first time in its motion for a JNOV; for that reason, we need not consider it here. Wampler v. Sherwood, 281 Or. 261, 270, 574 P.2d 319 (1978) (motion for JNOV cannot be based on grounds not raised by motion for directed verdict). In any event, G's mental state is......
  • Sila v. Saunders
    • United States
    • Nebraska Supreme Court
    • 11 Enero 2008
    ...Parks, 39 Wash.App. 37, 691 P.2d 591 (1984); Sanlando Springs Animal Hosp. v. Douglass, 455 So.2d 596 (Fla.App.1984); Wampler v. Sherwood, 281 Or. 261, 574 P.2d 319 (1978); Nunley v. Walker, 13 Utah 2d 105, 369 P.2d 117 14. See, e.g., Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983). 1......
  • Ross v. DeLorenzo, 80-4535-NJ-2
    • United States
    • Oregon Court of Appeals
    • 8 Febrero 1984
    ...The fact that the boundary could have been located by a survey does not prevent application of the doctrine. See Wampler v. Sherwood, 281 Or. 261, 269-70, 574 P.2d 319 (1978); see also Satchell v. Dunsmoor, 179 Or. 463, 172 P.2d 826 Second, the uncertainty must be resolved by an agreement, ......
  • Request a trial to view additional results
1 books & journal articles
  • Chapter § 60.3 RESOLVING DISPUTES BY LITIGATION
    • United States
    • Oregon Real Estate Deskbook, Vol. 5: Taxes, Assessments, and Real Estate Disputes (OSBar) Chapter 60 Boundary-line Disputes; Encroachments
    • Invalid date
    ...to a boundary need not be express, but can be implied from the conduct of the parties. Wampler v. Sherwood, 281 Or 261, 267-68, 574 P2d 319 (1978); Blaisdell, 66 Or App at 514. In the Wampler case the court lumped together the terms acquiescence and practical location. In Joy v. Palethorpe,......

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