Dice v. McCauley

StrAhan, C. J. Under section 4 of the donation act, E. C. Dice in his lifetime became a settler upon the donation claim described in the pleadings, and by virtue thereof, and upon compliance therewith, became entitled to said tract of land so settled upon, “one-half to himself, and the other half to his wife, to be held by her in her own right”; and the surveyor-general was required to designate the part inuring to the husband and that to the wife, and enter the same on the records of his office; and that line, when ascertained, would be the true dividing line between the plaintiff’s and defendants’ lands, unless something else intervened to affect it. The contention of defendants is that, twenty or more years ago, E. C. Dice and the plaintiff agreed upon a conventional line running between the house and barn, and which was always observed by maintaining a turning row on said line, and that thereafter each claimed [459] and occupied, up to that line without a question. In this view of the subject, the only question in the case is, whether or not there was such an understanding, which, if acted upon for a sufficient length of time, would bar an entry. This question is purely a legal one, and ought to be tried by a jury. This is not a case in which the place where the true line was run upon the ground has been lost by the removal or destruction of monuments, or for any cause cannot be ascertained or is not known, but it is one where the owners of the tract, for reasons that were satisfactory to themselves at the time, are alleged to have established another and different line by agreement, and which was acted upon by each of them by actual occupancy up to such conventional line for more than twenty years. The defendants’ evidence is all directed to this point, and it certainly does tend very strongly to establish this contention. Under this aspect of the- case, the only contention there is between the parties is, which owns the strip of land lying between the line made by the surveyor-general and the conventional line alleged to have been established by the parties. This brings the case within the principle applied by this court in Love v. Morrill, 19 Or. 545, which is decisive of this case. Let the decree appealed from be reversed and the suit, be dismissed.