Friendly v. Ruff

Mr. Justice Burnett delivered the opinion of the court. By the traversed allegations of the complaint, the plaintiffs have assumed the burden “of proving that the title of the defendants was defective in a specified particular, to wit, that the predecessor of the defendants had conferred a right and privilege upon Peeler and Sutton to enter upon the land and construct and maintain a canal or ditch over the same, for the purpose of [45] conveying water to the lands of the licensees, that they were in possession thereof prior to the time for consummating the purchase between plaintiffs and defendants, and refused to surrender possession to either of the parties litigant here. By this allegation, the plaintiffs not only seek to excuse themselves from paying the purchase price, but also to recover damages from the defendants for the alleged breach on the part of the latter of the terms of the contract, to the damage of the plaintiffs. 1. It is elementary that the party assuming the affirmative of the issue must prove his allegations by a preponderance of the testimony. On appeal from the judgment of nonsuit, therefore, it is incumbent upon the appellate court to examine the testimony reported in the record, and giving it the effect which may be fairly imputed to it, to determine whether there is any evidence which tends to support the averments of the complaint. The plaintiff H. M. Friendly testified in substance that about two weeks after the execution of the contract he visited the premises and found Mr. J. S. Peeler in possession of them, and discovered that about three quarters of a mile of irrigation ditch had been constructed upon the land. He and Peeler went over the land together, and while upon the premises Peeler informed him that he had built the ditch, in good faith, in accordance with a privilege given him by Mrs. Weygandt, which entitled him to maintain the ditch; that, under the circumstances after paying out money there for labor on the ditch, he did not feel that he could afford to lose or abandon what he considered to be his rights there. In substance the witness also stated that he reported the interview with Peeler to the defendant Ruff, and some negotiations ensued, looking toward a settlement to the matter, but nothing came of them, and [46] finally Ruff contended that Peeler and Sutton had no right there, and, after tender to plaintiffs by defendants of a warranty deed, ignoring the rights of Sutton and Peeler, if any there were, and plaintiffs’ refusal to accept the deed, this action was begun. 2. Plaintiffs offered in evidence a letter which they said was signed by Peeler, wherein he stated (addressing one of the plaintiffs, and alluding to Mrs. Weygandt) that “we have a written permit to go across her place anywhere it was necessary to get the water down on our place and we done the best we could with our limited means.” The court rejected this letter on the ground that it was hearsay, and not admissible to prove any right in Peeler and Sutton as against the defendants. The foregoing is a substantial resume of plaintiffs’ testimony on the subject of incumbrance, as alleged by them. The letter from Peeler to the plaintiffs was properly excluded, as the written permission of Mrs. Weygandt, mentioned therein if admissible at all, would be the best evidence of its own terms. 3. It is agreed that the contract for the sale of the property in question provides that the sellers should furnish a warranty deed and an abstract of title to the above property, showing a title in themselves clear of all incumbrance. An incumbrance, within the terms of such a covenant, includes any right to or interest in the land to the diminution of its value, but consistent with the passage of the fee by the conveyance. Huyck v. Andrews, 113 N. Y. 81 (20 N. E. 581), 3 L. R. A. 789; 10 Am. St. Rep. 432. Within the rule thus laid down, any adverse right or privilege which would interfere with or curtail the full and exclusive enjoyment of the fee simple title by the grantee in the contract would justify the allegations of a breach of such a covenant. 4. 5. Alleging, as they do, that Peeler and Sutton had entered into possession of the land and refused to [47] vacate, the plaintiffs are not necessarly confined to strict proof of a license, but may show enough in the way of adverse possession to impair the fee simple title for which they contracted. What, then, is the effect to be given to the oral testimony on behalf of the plaintiffs that Peeler and Sutton were in possession of the land, refusing to surrender to either of the parties here, and digging an irrigation ditch thereon for their own use, under claim of right? In O. R. & N. Co. v. Hertzberg, 26 Or. 216, 222 (37 Pac. 1019), and in Browning v. Lewis, 39 Or. 11, 17 (64 Pac. 304), Justice Moore says: “A prior possession of land for any length of time is prima facie evidence of title,” and Justice Eakin says the same thing in Sommer v. Compton, 52 Or. 173, 178 (96 Pac. 124, 1065). The same rule may be derived by analogy from Vance v. Wood, 22 Or. 77 (29 Pac. 73), which teaches the doctrine that several hostile holdings for less than the statutory period may be tacked together to make up ten years’ adverse possession, amounting to a fee simple title, provided the holders are all in privity with each other successively, and that such privity may rest either in deed or parol. It must follow as a corollary that any one of such holdings is, pro tanto at least, prima facie evidence of title. In Skottowe v. Oregon Short Line Ry. Co., 22 Or. 430 (30 Pac. 222) : 16 L. R. A. 593), and Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 224, (102 Pac. 1016), it is held, in substance, that acts of ownership over real property, such as making repairs on structures there are circumstances tending to show that the premises belong to or are in control of the party doing the acts. This is in consonance with the presumption “that a person is the owner of property from exercising acts of ownership over it.” Section 799, subd. 12, L. O. L. See, also, Stevens v. Sandnes, 108 Minn. 271 (121 N. W. 902) ; [48] Pittsburg, etc., Ry. Co. v. Wilson, 46 Ind, App. 444, (91 N. E. 725) ; 1 Jones, Real Property, § 918; Gilmore v. Norton, 10 Kan. 491, 505. Again, if possession of real property is prima facie evidence of title in fee, the plaintiffs are not in a worse position, because, on the same testimony, they restrict their charge of an outstanding incumbrance to a license; for the lesser estate may be shown by that means, if the greater can be so proven. We conclude, then, that the oral testimony to which allusion has been made tended to prove an impairment of the fee simple title which the plaintiffs had contracted to purchase and the defendants had agreed to convey, within the meaning of Collins v. Delashmutt, 6 Or. 51, and that a prima facie case was made, sufficient to take the issue to the jury. The judgment of the circuit court is reversed, and the cause remanded for further proceeding, not inconsistent with this opinion. REVERSED.