Oregon Home Builders v. Eisman

MOORE, J. A blue-print of that part of the plat of Rullman’s Addition to the City of Portland, Oregon, which is involved herein, was made a part of the complaint in this action. This map delineates a checkered curved line, extending easterly from that city and marked “Oregon Railway and Navigation Co.” Parallel therewith are two other lines, the northerly one [616] being designated as “North line Eight of "Way.” East 33d Street is represented as extending north and south, the east line of which is coincident with the west line of lot No. 1 in that addition. Lots numbered consecutively from one to ten are portrayed on the blue-print. Immediately north of these lots is depicted a street marked “Broadway.” At the northwest corner of lot No. 1, as specified on the map, are the words “Iron Pipe, Initial Point.” The north boundary of that lot is represented as being 40.37 feet wide, while the north lines of the other lots from two to six inclusive, are each indicated as being 50 feet. The west boundary of lot No. 1 from Broadway Street to the “North Line Eight of Way” is marked 90.40 feet; the west line of lot No. 2 is 67.31 feet; No. 3, 54.27; No. 4, 45.15; No. 5, 39.04; No. 6, 35.59, and the east border of the latter lot is 35.10 feet. The complaint alleges that the west boundary of lot No. 1, as indicated upon the plat, extends upon and south of the north border of the right of way, 4.22 feet, and the eastern boundary thereof 3.33 feet, and that the east boundary of the other lots extends south of the north line of the right of way as follows: Lot No. 2, 3.10 feet; No. 3, 2.78; No. 4, 2.87; No. 5, 2.69; and No. 6, 2.58 feet. This action involves alleged breaches of seizin and of warranty of the title to a strip of land, bounded on the north and south by curved lines, which are separated from each other, and asserted to involve the right of way at the east end 2.58 feet, at the west 4.22 feet, and at intervening points, as hereinbefore indicated. The affidavit and certificate of the person making the plat, who measured and subdivided the tract into lots, a part of which were conveyed by the defendants to the plaintiff, shows that the initial point mentioned is located 470.10 feet north and 30 feet east of the [617] quarter post between sections 25 and 36 in township 1 north, range 1 east of the Willamette Meridian. Assuming the quarter- post so referred to can readily be found, no difficulty would be encountered in extending upon the ground the lines of Eullman’s Addition, as indicated upon the plat thereof. There is also attached to the initiatory pleading the surveyor’s affidavit, appended to the original plat, which sworn statement gives the initial point as stated, and contains a clause which reads: “The description of the out boundaries of the tract platted is as follows: Beginning at the above mentioned initial point, thence east tracing the south line of Broadway (Street) 490.37 feet to a point; thence south at right angles to said south line 62.28 feet to a point on the north line of the O. E. & N. E. E. right of way; thence westerly tracing said north line of right of way to a point on the east line of E. 33d Street, 80.40 feet •south of the beginning point; thence north tracing the east line of E. 33d Street 80.40 feet to the place of beginning.” 1, 2. The surveyor’s affidavit and certificate, which were attached to and made a part of the plat when it was filed for record, should be regarded as incorporated in the description thus set forth: 9 C. J. 220. Interpreting such attestation and sworn statement in the manner indicated, the southerly boundary of lots 1 to 6 inclusive, is thereby made coincident with the northerly line of the earlier survey of the right of way, thus recognizing such adjoining land as a monument which determines the measurement of the east and west lines of the several lots extending from Broadway Street south to the railway company’s real property: Pickman v. Trinity Church, 123 Mass. 1, 5 (25 Am. Rep. 1). In that case Mr. Justice Colt, referring to a similar conveyance, observes: [618] “The defendant chose to bound the estate conveyed by it on the line of Thorndike’s land. By the terms of the deed, his line was made a monument which controls the distances given and the quantity of land stated.” ' To the same effect is the case of Percival v. Chase, 182 Mass. 371, 377 (65 N. E. 800), where Mr. Justice Loring remarks: “A monument governs measurements, and the land of an adjoining proprietor is a monument within that rule.” In Couch v. Texas & P. Ry. Co., 99 Tex. 464 (90 S. W. 860), it was ruled that a call in a deed for a railroad right of way would, if unexplained, be treated as a call for another tract of land, thereby controlling conflicting calls for distance. See, also, upon this subject the extended notes to the case of Matheny v. Allen, 63 W. Va. 443 (60 S. W. 407, 129 Am. St. Rep. 984, 1005). Our statute, prescribing the rules for construing the description of real property, declares: “"When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount”: Section 878, Subd. 2, L. O. L. 3,4. The demurrers admit all the averments of fact set forth in the complaint that are well plead, and of any reasonable and proper inference dedncible therefrom: Wills v. Nehalem Coal Co., 52 Or. 70 (96 Pac. 528). Construing the initiatory pleading in connection with the plat and the surveyor’s certificate, it would appear that in measuring the land, the surveyor made mistakes in running the east and west boundaries of the several lots in Rullman’s Addition too far south, thereby encroaching upon and extending such lines [619] south of the northerly boundary of the right of way at such places. ■ From an examination of the averments of the complaint it would seem that about the year 1885 the railroad was constructed along the center line of the right of way, which fronted upon the tract of land that was subsequently platted as Rullman’s Addition; that about the year 1909 the track was moved southerly at the east line of East 33d Street 4.22 feet and at the east side of lot 6, 2.58 feet; that without knowing such change had been made, the surveyor assumed that the track then occupied the center line of the original survey, and extended the side lines of the lots described in the plaintiff’s deed to points 50 feet from the middle of the track as he then found it, thereby overlapping the north boundary of the right of way to the extent indicated. But however this may be, as the plat which was of record when the plaintiff secured its deed, conclusively shows that the lots purchased extended only from Broadway Street south to the north boundary of the right of way, of which fact the grantee had notice, the surveyor’s notations made upon the map to indicate the distances of the east and west lines of such lots, must necessarily yield to the north boundary of the survey of the railway company’s easement. Considering the averments of the complaint, the delineations of the plat, and the statements made in the surveyor’s certificate and affidavit, it is evident that the defendants intended to convey and the plaintiff to acquire the legal title to only so much of the real property described in the deed as is situate between Broadway Street and the northerly limit of the right of way, and this being so no error was committed in sustaining the demurrer. The judgment is therefore affirmed. Affirmed. Rehearing Denied.