Crandall v. Mary

135 P. 188, 67 Or. 18, 1913 Ore. LEXIS 151

• Court: Oregon Supreme Court
• Decided: September 30, 1913
• Status: Published

Opinion

Opinion by

Mr. Chief Justice McBride.

The evidence is not clear as to when the original plat of Lebanon was dedicated. There is a plat in evidence filed July 19,1865, which purports to be a resurvey of the town and contains a dedication by Ralston and wife, acknowledged about the same date. The dedication states that it is to date from June 1, 1855, from which we conclude that there was a former plat and dedication on that date, and that the survey, plat, and dedication of 1865 was to make certain or to confirm some previous plat or dedication. On this plat is noted in red ink a street called Oak Street, running east and west and parallel with block 1; its south boundary being the north line of William Ralston’s donation land claim. Across the space designated as Oak Street, at a point opposite the southeast corner of block 1, the letters and figures “30 ft.” are written in red ink, which would seem to be intended to show the distance from the north line of the William Ralston claim to the southeast comer of block 1. While this notation on the plat would seem to indicate that block 1 was 30 feet north of the north line of the William Ralston claim, which the testimony of Mr. Fisher implies is coincident with the south line of the donation land claim of Jeremiah Ralston, who was the original dedicator of the town plat of Lebanon, the notes of this survey are very indefinite and are not made clearer by the testimony. The following comprises the entire record of the survey except the plat:

“Survey made July 18, 1865, to find the location of the town of Lebanon, Oregon. Beginning at the S. E. corner of N. E. % of section 10, township 12 south, range 2 west. Thence running south on the section line 26.75 chains to the south line of J. Ralston’s donation land claim. Thence west on said line 2.60 chains to a point, where the street on the east side of the town intersects the street on the south side; this point of intersection being at the center of each of said streets at the S. E. corner of the town plat. Given under my hand this 18th day of July, 1865.

“Cyrus Clingman,

“County Surveyor.”

There is no record of any stakes being set on the survey or at the street intersections mentioned; and, as it was a resurvey of an already existing town, it is not probable that any were set. It was simply a resurvey of an existing town made from data not disclosed by the testimony and therefore unreliable. Even if stakes had been set, they would not control the' description in the deed unless referred to therein: Powers v. Jackson, 50 Cal. 429.

1. It seems to be established by the great weight of the testimony that for more than 40 years the southeast corner of block 1 has been recognized as being at the place where plaintiff here contends it is, namely, 33 feet north of the south line of the Jeremiah Ralston claim. Buildings and sidewalks have been for a generation constructed with reference to its existence at the place designated. Other lots, blocks and streets have been located and built upon with reference to this location as an initial point, and other additions have been located and platted to correspond with it. We have no doubt from the evidence that the original corner of - the block as it was marked out upon the ground was where plaintiff now claims it, and in our opinion the evidence of universal usage and acquiescence of everybody in the location of the lots, streets and corners as they would exist when measured with reference to this corner, as placed by plaintiff’s testimony, far outweighs the memorandum made by the surveyor upon the plat submitted in evidence.

2. The actual location on the ground of the corner mentioned as the initial point in the description in defendant’s deed to plaintiff was a matter of general notoriety. Buildings, sidewalks and streets made its position so evident that all these parties could see where it was, and they should be presumed to have dealt in view of that knowledge and to have had in mind the corner as it appeared to the eyesight and as it had been acquiesced in by everybody for a generation rather than where a new survey might possibly place it. It is claimed that the plaintiff bought rather with reference to the survey made by Fisher of the first tract than by the description in the deed, and he should be held to have acquiesced in the correctness of that survey and be confined to the boundaries then measured off and staked.

3. It is very true that, where courses and distances mentioned in a deed conflict with fixed monuments therein mentioned, the reference to monuments will control; but that is not this case. Here no survey or stake is mentioned. The initial point is a street corner, the location of which in this particular instance was notorious, and with- buildings and sidewalks so designating its position, that a reference to it was, in fact, a reference to a permanent, known, and visible monument. The description is plain upon its face, and there are no surveys, stakes or other monuments mentioned which render the description uncertain in any respect. The southeast corner of block 1 being ascertained, the deed speaks for itself.

4. The evidence does not show an estoppel against plaintiff by reason of having acquiesced in the survey and having taken a deed pursuant to it. The weight of testimony is that the survey was made after the deed was executed, and- this is borne out by the fact that none of the deeds from defendant to plaintiff refer to this survey.

On the whole, we are satisfied that the true corner of block 1, as located upon the ground by the original proprietor of the town of Lebanon, is at a point 33 feet north of the south line of the donation land claim of Jeremiah and Jemimah Ralston, and that plaintiff’s deed was executed and taken- in view of that location.

The decree of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Bean, Mr. Justice Lakin and Mr. Justice McNary concur.