Joy v. Palethorpe

Mr. Justice McBride delivered the opinion of the court. Stripped of all verbiage, plaintiff’s complaint must be taken to allege that he had title by adverse possession, to a strip of land 15 inches in width and extending along the westerly side of lot 12, in block 8. It is clear, as conceded by the pleadings, that the record title to the whole of lot 12 is in defendant. Upon the trial plaintiff called as a witness one J. M. Cheaver, who testified, in substance, that he had lived in Richmond Addition and was familiar with its conditions ever since it had been laid out, and was acquainted with the premises in dispute; that 16 or 17 years before the [556] trial one Meeks owned lot 10 and Judge Arthur Frazer lot 12; that shortly after they bought he was present and assisted in fixing the line for the purpose of building a division fence; that for a starting point he took a post at a lot corner on Clinton Street and stuck up a long pole at this place; that Frazer stood at the corner of his lot and Meeks stood in the middle, and they sighted through, thereby ascertaining the west line of the lot, and a fence was placed accordingly; that the stakes he measured from were the original stakes set when the survey of the addition was made, and he supposed they were where they were originally placed, as he never saw them moved. Mrs. A. L. Frazer corroborated Cheaver’s testimony as to the building of the fence and walk, and testified that roses were planted along the fence at the easterly edge of the walk. Mrs. Dunham testified that she moved into the house on lot 12 in 1899 and remained there until 1904; that Meeks was then living in the other house, and that there was a board walk running along the easterly side of his lot, which was supposed to belong to him; that she did not know whether it was on the line or not, as there was never any question about it. She stated she never used the walk unless she wished to go to Meek’s back door, and that it was not used in common. Plaintiff Joy testified that he bought the property in 1906, and had been in possession of it ever since; that when he went into possession there was a board walk on the easterly side, which he had subsequently replaced with the present cement walk; that before he purchased he made inquiry, and was informed that the east line of lot 10 was along the east side of the walk; that nearly 8 years before the trial defendant put up a fence composed of iron posts and woven wire along the east side of the [557] wooden walk, which was the same walk described by-witness Cheaver; that the fence was exactly on the line according to the original platting of the addition. Meeks, called by defendant, corroborated Cheaver as to the establishment of the line, and asserted that the fence was placed upon the true line of the lot. The defendant testified that the fence placed by her was merely temporary to prevent dogs from running over sweet peas and other flowers planted upon her lot, and that she never intended to recognize it as the true line; that she had had a survey made which showed the true line to be where she now claimed it, and that in replacing the board walk with the cement walk plaintiff had crowded from one and one half to three inches farther to the east; that she knew that the fence was inside the east line of lot 12 when the trellis was put up. Defendant stated that a survey made by the city and county surveyor showed that she did not have the 50 feet of frontage that she should have; that they began the survey at the section line on Division Street. No notes of such surveys were produced, and the surveyors who made them were not called. Other testimony showed that in 1901 the title to both lots passed to the United States Loan & Savings Society, which held it until 1906, when it sold lot 10 to plaintiff, and later sold lot 12 to defendant. 1-3. It is clear that plaintiff’s claim of adverse possession by himself and his grantors of the disputed strip cannot be maintained for the reason that before the 10 years from the date of erection of the original walk expired the title and possession of both properties became united in the United States Loan & Savings Society, which did not sell to plaintiff until 1906. As this corporation could not hold adversely to itself, [558] the continuity of the adverse possession was broken, and plaintiff’s adverse possession dates only from 1906, which is less than 10 years before the commencement of this suit. The complaint expressly alleges that the disputed strip projects 15 inches over on defendant’s lot, which is admitted. Plaintiff has pleaded one case, while his testimony strongly tends to prove another. The testimony of Méeks and Sheaver indicates that the line between the lots was ascertained shortly after the addition was platted, and while the original lot stakes were still visible, and it seems most probable that the original boundary line of the lots ran substantially along the east line of plaintiff’s present walk. As to that matter it is not a question as to whether or not defendant’s lot contained a full 50-foot frontage, but where the lines originally ran upon the ground. The evidence as to an agreed line between Frazer and Meeks has no bearing' here because such an agreement operates solely by way of estoppel: Vosburgh, v. Teator, 32 N. Y. 561. In this state an estoppel of this character must be pleaded: Rugh v. Ottenheimer, 6 Or. 231 (25 Am. Rep. 513); Remillard v. Prescott, 8 Or. 37; Bays v. Trulson, 25 Or. 109 (35 Pac. 26); First Nat. Bank v. McDonald, 42 Or. 257 (70 Pac. 901); Haun v. Martin, 48 Or. 304 (86 Pac. 371); Ashley v. Pick, 53 Or. 410 (100 Pac. 1103). 4. As the case stands, plaintiff had failed to plead the actual title which his evidence tends to prove, and has failed to allege the estoppel by reason of the agreement as to the boundary line and the acquiescence therein by Frazer and defendant, which he attempted to establish on the trial, while, as already stated, his chain of adverse possession was broken by the union of both estates in a common ownership. The defend [559] ant has shown no title in herself to the strip in controversy beyond the admission in plaintiff’s complaint, which, as stated on the trial and shown by the testimony, was probably a mistake. There was no claim for damages and no evidence of any damage whatever to defendant’s freehold beyond merely nominal damages. It is evident that the condition of the pleadings was snch that the court was unable to render substantial justice without wholly disregarding them. The suit will therefore be dismissed at plaintiff’s cost, without prejudice to either party to bring another suit to settle their respective rights to the property in controversy. Dismissed Without Prejudice. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.