Schiffmann v. Youmans

McBRIDE, C. J. 1. Whatever may be the rule in other jurisdictions, the case of Roots v. Boring Junction Lbr. Co., 50 Or. 298 (92 Pac. 811, 94 Pac. 182), is conclusive in this state in favor of the doctrine that equity will intervene to prevent the cutting of standing timber when such timber constitutes the principal valne of the estate. This is true in this state, not only for the reasons given in that opinion, but for another reason, namely: the difficulty of estimating the damages after logging timber has been cut and removed from the land. It is not possible, after timber has been cut and converted into sawlogs and removed, to ascertain accurately, by an inspection of the stumps and tops left upon the g’round, the lumber contents of the logs removed; and the owner of the land is more or less at the mercy of the records and statements of the trespasser as to these facts. The statutes have attempted to obviate this difficulty, by providing for the triple damages from a willful trespasser, but in cases of casual trespass, and the present case may well be classed in that category, no such damages are allowed and the remedy at law is inadequate. 2. It is urged that a suit to restrain a trespass cannot be used to determine the location of a disputed boundary line, and this contention is, true where there [517] is no other element in the case upon which equitable jurisdiction may be predicated, as in Hume v. Burns, 50 Or. 124 (90 Pao. 1000). But where, as in this case, an alleged uncertain boundary line is made a pretext by the defendants for destroying the substance of the estate, an injured party is not required to bring one suit to have the original boundary line retraced and established and wait until that is decided, before bringing suit to restrain a trespass which is destroying the substance and value of his estate. As shown by Love v. Morrill, 19 Or. 545 (24 Pac. 916), and Andrews v. Brown, 56 Or. 253 (108 Pac. 184), a suit to determine a disputed boundary is confined in this state to very narrow limits, and is not sufficiently expansive to cover such equities as those invoked in the case at bar. It may be remarked that the gist of this suit is to prevent defendants from cutting down and removing the timber on that parcel of land in dispute between the parties. The location of the boundary becomes important incidentally, because if the line is where the plaintiff claims, the defendants are trespassers, while if their contention as to its location is valid, they are only exercising the right to use their own property. Thus, while the correct location of the boundary line between the two tracts is not the primary object of the suit, it becomes incidentally a controlling factor in its determination. 3, 4. The testimony as to the location of the line between sections 6 and 7, which forms a common boundary between plaintiff and defendant Hickey, is somewhat contradictory. Neither party has produced testimony that assures us that the line can be traced by blazes or other marks made at the time the government survey was run, and the maps offered in evi [518] dence are so incomplete as to render the task of identifying stakes and lines indicated in the testimony, very difficult. So much so that the writer has been compelled to compile from the testimony, as best- he could, a map of the various locations therein referred to; but, after a careful examination of the testimony, we are fully satisfied that the monument set by the government surveyor for the southeast corner of section 6 and the northeast corner of section 7, was placed at a considerable distance south of where an east and west line running’ between sections 6 and 7 would locate it, thus increasing the area of section 6 at the expense of section 7. 5. The true boundary of sections 6 and 7, so far as the tract in dispute is concerned, is, therefore, a straight line between the quarter-section corner found and identified by plaintiff’s witness Sappington, and the southwest corner of section 6, the location of which is conceded by all parties. This places the line between plaintiff and defendant Hickey as fixed by the court, and as monuments control courses and distances we are forced to agree with that finding. We think the defendant’s evidence of adverse possession is not sufficient to constitute a defense on that ground. Hickey testified that he built a fence on the east line of the northwest quarter of section 6, the north end of which terminated at a point where he now claims the quarter post was located, and that at the latter point he erected a pair of bars. The fence seems to haye been mostly constructed of brush and logs with some rails and was intended, he says, to prevent the cattle of his neighbors east of him, from straying over on his premises and to prevent his own cattle from straying to the eastward. This fence, he says, was in existence for ten or fifteen years, but [519] has now disappeared with the exception of a few strips nailed on a supposed witness tree, which indicate that a pair of bars once existed there. The fence was evidently a temporary affair, was not on any line, or supposed line, between plaintiff and defendant and inclosed no land. There has never been a time when plaintiff could have maintained ejectment for possession of the disputed strip by reason of the erection of this fence. Neither can the occupancy of part of the land embraced in his patent avail him here, because the field-notes call for monuments, and these calls being imported into the patent the holding must be construed with reference to the monuments as they actually existed on the ground, rather than to the courses and distances therein mentioned. 6. This leads to an affirmance of the decree of the Circuit Court. It is fair to say that we do this only because the law compels us to adjudicate the legal rather than the moral rights of the litigants. We award plaintiff the timber on the disputed strip because the law awards it to him, and we have no discretion to set aside the law, but, considered from the standpoint of the G-olden Rule, plaintiff’s conduct is oppressive and unneighborly and does not meet with our approbation. There is one matter in which we have discretion, and that is in the matter of awarding him costs, and while we affirm the decree as to the injunction and the damages allowed by the Circuit Court, the plaintiff will not recover any costs or disbursements on this appeal. Affirmed. Rehearing Denied. Burnett, Benson and Harris, JJ., concur.