Stout v. Michelbook

Mr. Justice Bean delivered the opinion of the court. From the evidence of the different surveys, there is little question but that the boundary claimed by defendant is a portion of the original west line of the John G. Baker D. L. C., which must be taken to be the true dividing line between the parties herein, unless plaintiff has acquired title by adverse possession for the statutory period to the land in dispute. The contention of defendant is that, while plaintiff has occupied and farmed the land up to the fence, his holding has not been adverse to defendant, for the reason that he [374] intended to claim title only to the true line. This contention, we think, is not borne out by the testimony. It appears from the evidence that the fence was old when plaintiff purchased the land in 1877, having ever since been rebuilt and maintained by him and defendant and his grantors; that the man from whom he purchased showed him this fence as the line with a stone monument in the center of the county road at its north end, which stone has since disappeared, probably when the road was graded, and a stone at the south end lying on the ground, which still remains; that the line indicated by the fence has ever since that time, 1877, been acquiesced in by the owners on both sides, and in no way questioned until a short time before the commencement of this suit; that plaintiff has been in actual continuous possession of his tract of land, farming the same, and claiming title up to the old fence ever since 1877; and that defendant and his grantors and predecessors in interest have during the same time been in the actual possession of the land on the east thereof, farming the same to the fence. About 1905 Granville Baker, then owner of the Michelbook tract, requested plaintiff to have the dividing line surveyed, as plaintiff asserts, for the purpose of surveying a line upon which to erect a new fence, and in December of that year Robert W. Jones, then county surveyor, made such survey, plaintiff being present, but no plat or field notes were filed in the office of the county surveyor or in the office of the recorder of conveyances; the only plat thereof being one made by Jones from memory at the time of the trial, and no boundary line was thereby established. This survey plaintiff repudiated, and pulled up the surveyor’s stakes, and whenever .the line indicated by the fence was questioned as being the true dividing line persistently contended that it was, at all times claiming title to the land up to the fence, and, when defendant undertook to remove the old fence and build his portion of the new [375] fence west of the old line, plaintiff objected thereto, instituting this suit to prevent the same. The evidence of defendant shows that at one time after the dispute arose he was willing to accept the line indicated by the old fence “all the way through.” 1. The legal proposition of defendant that to constitute an adverse holding by plaintiff it must be under claim of title and with an unconditional intent to hold the land against all the world is not controverted. 2. After a careful perusal of all the evidence, with which we do not deem it necessary to encumber the record we are of the opinion that plaintiff’s possession of the land to the fence since 1877 has been open, notorious, continuous, and exclusive, under an unconditional claim of right, and adverse to defendant, and that the case comes within the rule laid down in Caufield v. Clark, 17 Or. 473 (21 Pac. 443: 11 Am. St. Rep. 845); Ramsey v. Ogden, 23 Or. 347 (31 Pac. 778); Gist v. Doke, 42 Or. 225 (70 Pac. 704); Cooper v. Blair, 50 Or. 394 (92 Pac. 1074); Sommer v. Compton, 52 Or. 173 (96 Pac. 124, 1065). That the general line of the old fence without regard to the slight diversions is the true divisional line between the lands of plaintiff and defendant. The decree of the lower court must be reversed and one entered here in favor of plaintiff, directing the circuit court to appoint three commissioners to establish and mark, by proper monuments, as provided by statute, the true dividing line herein indicated. Reversed: Decree Rendered.