Ogilvie v. Stackland

BEAN, J. The question in dispute involves the location of the subdivision line between the southeast quarter of the northeast quarter, and the southwest quarter of the northeast quarter of section twenty-two (22), township three (3) south, range 40 east, W. M. in so far as it borders on the west of the twenty acre tract described. „ Defendant pleaded, to the effect, that this line was surveyed, located and established more than thirty years prior to the time defendants sold and conveyed to the plaintiff the lands mentioned and described in plaintiff’s complaint herein; and that a line fence of rails was built and constructed on the division line so surveyed, located and established between the two tracts of land and was at the time defendants sold and conveyed the lands to the plaintiff, and had been continuously for more than thirty years immediately prior thereto, maintained and standing upon the division line between the two tracts of land and that the line fence did then, ever since has, and does still stand upon the division line and marks the west boundary of the lands conveyed by defendants to plaintiff. And that defendants sold the [357] tract to plaintiff with reference to such line; that the line as marked by the old rail fence had been recognized by the owners of the respective tracts on each side thereof as the true division line for more than thirty years. A careful reading of the testimony discloses that there was proof to sustain the allegations of defendant’s answer. Plaintiff moved to strike out that portion of the answer referred to and upon the motion being denied demurred to the same and assigns the overruling of the motion and demurrer as errors. Plaintiff also assigns error in the finding of the court to the purport thát the old rail fence marked the true west line of plaintiff’s tract of land, for the reason that such finding is not supported by-the evidence. The same question is involved in each assignment of error. 1. Where the boundary lines of a tract of land are settled and determined by the mutual agreement or acquiescence of adjacent proprietors for more than thirty years and marked by fences or other monuments they became the true boundary lines: McCully v. Heaverne, 82 Or. 650 (160 Pac. 1166, 162 Pac. 863). 2. Plaintiff complains that the court ignored the survey of the county surveyor made in 1915. When a boundary line between two tracts of land has been accepted as marked and has been occupied by the respective owners for more than thirty years such line cannot be considered as doubtful-, uncertain or disputed, so as to authorize proceedings by the county surveyor to establish a different division line under Section 2991, L. O. L. The Circuit Court was right in not allowing the old established line to be changed by a slight difference in a survey made by the county surveyor at the instance of the plaintiff: Egan v. Finney, 42 Or. 599 (72 Pac. 133). There was no [358] error in denying the motion to strike and overruling the demurrer. 3, 4. There is another reason why the judgment of the lower court should be affirmed. It is admitted in this case that the sale of the land to defendants was for a sum in gross and not by the acre. The quantity stated in the conveyance was qualified by the words “more or less.” Therefore, there was no warranty of the exact quantity. There being no allegation of fraud in the transaction, if it be assumed that there was one sixth of an acre less than 100 acres in the area, it would not be a breach of the warranty. It' appears, however, that there is no shortage in the 100-acre tract: Britt v. Marks, 20 Or. 223 (25 Pac. 636); 2 Sutherland on Damages, 250; 39 Cyc. 1312-1322. The other errors in regard to the land become unimportant. The main judgment of the lower court is affirmed. Appeal prom: Judgment por Costs. 5, 6. Plaintiff objected to certain items in defendants’ cost bill. The trial court made finding of facts in regard thereto and rendered judgment in favor of defendants. Plaintiff also appeals from that part of the judgment and predicates error of the court in allowing defendants judgment for either fees or mileage for four witnesses. The gist of the findings of the court in this matter is as follows: D. Lloyd, 3 days, 628 miles..................$131.60 C. M. Stackland, 3 days, 628 miles............ 131.60 C. L. Keller, 3 days, 632 miles.......>........ 132.40 Karl Stackland, 3 days, 628 miles............ 68.80 The court found that the three first-named witnesses attended by order of the court from Union County, Oregon, and more than 100 miles from the place of trial, and allowed double mileage, or twenty cents per mile for each; and that Karl J. Stackland [359] received a subpoena in that county, and attended as a witness upon tbe trial and allowed ten cents per mile for this witness. In the absence of any statement in the bill of exceptions in regard to the amount of disbursements complained of, we take the finding of facts of the Circuit Court as correct. An appeal is permitted from the judgment on the allowance and taxation of costs and disbursements on questions of law only. Such a finding is final and conclusive as to all questions of fact. Not so, however, as to questions of law: Section 570, L. O. L.; School District No. 30 v. Alameda Constr. Co., 87 Or. 132, 142 (169 Pac. 507 788). The findings in regard to witness fees do not support the judgment. The fees of a witness in the Circuit Court for Multnomah County allowed by law are for each day’s attendance, $2.00 (Section 3148, L. O. L., as amended by Laws of Oregon 1915, p. 86), and mileage at the rate of five cents per mile: Section 3145, L. O. L. A witness required to attend a trial in a civil action in a court of record in a county other than the one in which he resided, or is served with a subpoena and order, and more than 100 miles from his place of residence is entitled to double mileage and per diem: Section 818, L. O. L., as amended by Laws of 1915, p. 95; Burrows v. Balfour, 39 Or. 488 (65 Pac. 1062); City of Seaside v. Oregon S. & C. Co., 87 Or. 624 (171 Pac. 396). Taxed by this law, defendants should be allowed costs and disbursements as follows: Clerk’s fee..................................$ 5.50 Attorney’s fee (statutory)................... 10.00 Court reporter ............................. 10.00 D. Lloyd, 3 days, @ $4.00-628 miles @.10____ 74.80 C. M. Stackland, 3 days, @ $4.00-628 miles @ .10..................................... 74.80 C. L. Keller, 3 days, @ $4.00-632 miles @ .10.. 75.20 Karl Stackland, 3 days, @ $2.00-628 miles @ .05 37.40 Total $287.70 [360] 7. It is contended by defendants’ counsel that the assignment of error and objections to the cost bill are insufficient to raise the question presented. Plaintiff objected to the allowance of any fees for the witnesses named and assigns as error the judgment for any amount therefor. As the greater .includes the less, and error is apparent from the face of the record of the judgment for costs, we think the appeal from the judgment for cost is well taken: School District No. 30 v. Alameda Constr. Co., 87 Or. 132, 142, 143 (169 Pac. 507, 788). The judgment for costs will be modified in accordance herewith. Affirmed in Part. Modified in Part. Rehearing Denied. McBride, O. J., and Johns and Bennett, JJ., concur.