Weaver v. Southern Oregon Co.

• Decision Date: 16 March 1897
• Parties: WEAVER v. SOUTHERN OREGON CO.
• Court: Oregon Supreme Court

48 P. 167

31 Or. 14

WEAVER v. SOUTHERN OREGON CO.

Supreme Court of Oregon

March 16, 1897

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Action by John Weaver against Southern Oregon Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was commenced in October, 1894, to recover for the use and occupation by the defendant of certain premises belonging to the plaintiff. The complaint contains two causes of action, in the first of which it is, in substance, alleged That on the 24th day of July, 1882, by a certain agreement or lease in writing, a copy of which is annexed to and made part of the complaint, the plaintiff demised to one H.H. Luse a right of way for a logging tramway or railroad over certain premises belonging to him for the term of 10 years at an annual rental of $125, payable at the end of each year. That on or about the 14th day of December, 1887, all the rights of Luse under the lease became vested in the defendant, as his successor in interest, and it then and there, with the consent of plaintiff, "entered into possession of said demised premises, and, with consent of plaintiff, continued in possession of said premises during the full period of said lease; and, since the expiration of the 10-years term described and provided for in said lease, defendant, with consent of plaintiff, has continued in the possession of said premises, and, with consent of plaintiff, still continues in possession thereof, and still continues to use and occupy the same for its logging railroad, and for its logging purposes and during said time that defendant was so possessed of said demised premises it continued to pay said yearly rental of $125 per year up to the 31st day of December, 1892. That since said 31st day of December, 1892, defendant refuses to pay any rent for the use of said premises, and there is now due and owing plaintiff from defendant on said agreement of lease, and for the use and occupation of said premises for said right of way, the sum of $125 for the year's rent commencing January 1, 1893, and ending December 31, 1893, and interest on said sum of $125 at the rate of 8 per cent. per annum since said 31st day of December, 1893, and defendant has not paid the same, nor any part thereof." As a further and separate cause of action it is alleged, in substance: That on July 12, 1890, the plaintiff sold, and by deed conveyed, to the defendant all the timber, except red cedar, standing, lying, or being on certain described real property belonging to him, together with the right and privilege of entering upon said real property, and making such roads and ways thereon as it might deem suitable and convenient for the removal of such timber, at any time within three years; and stipulated therein that, in case the defendant should fail to complete the removal thereof within the time specified, it should have such additional time as it might desire in which to do...