Mr. Justice Bean
delivered the opinion of the court.
1. Plaintiff’s complaint as to fraudulent representations on the part of the vendors is not sustained by the evidence. The averment in regard to a want of ownership of about 12 acres of the land contracted for refers to a piece surveyed and marked upon the plat in evidence as 10.15 acres in the shape of a portion of an L extending north from the western boundary of the main tract and down along the Willamette Biver immediately west of a Mr. Coyle’s land. For several years the fences on the south and north of Coyle’s land have extended past the strip to the Willamette Biver so as to embrace the same in his inclosure. This was done apparently to economize in fencing. An attempt was made to show that Coyle had gained title to this tract by virtue of the statute of limitations. He was a witness in the case and plainly stated that he had no use for this land; that he claimed only the land conveyed to him which was a part of the Coyle Donation Land Claim which was shown not to include the 10.15 acre piece, formerly state school land. In the negotiations for the sale, the farm was referred to as consisting of 147 acres. The main contention of plaintiff is that there is a shortage in the number of acres. After the action was commenced by Smith, plaintiff procured a survey of the land to be made which was delineated upon the map exhibited as containing in the aggregate 134.17 acres. While the land is all connected the acreage is computed in four parts, one of which has already been referred to. The larger parcel which is a part of the Coyle Donation Land Claim is nearly in the form of a rectangle. It is surveyed and marked on the plat as containing 103.89 acres. In the negotiations this tract was called 107 acres. Embraced therein is a road occupying 3.49 acres which was not included in [83]*83the survey. This, if added, would make a fraction over 107 acres, the estimated area.
2. It is held in this state that the existence of a visible and known physical encumbrance upon land contracted to be conveyed, such as a public highway, is not such an encumbrance as renders the owner’s title unmarketable. It is a presumption that in fixing the purchase price the existence of such an easement was taken into consideration by the parties: Maupin on Marketable Title (2 ed.), 197; Barnum v. Lockhart, 75 Or. 528, 540 (146 Pac. 975); Wetherby v. Griswold, 75 Or. 468, 475 (147 Pac. 388); Lombard v. Kies, 79 Or. 355, 362 (154 Pac. 757). Por aught that appears in the record plaintiff knew all about the county road. On the west of the 107 acres, between that tract and the Willamette Eiver as surveyed, there are five acres. Adjoining the larger tract on the southwest is one formerly conveyed as 26 acres, which was surveyed as 15.63 acres. The first and two last pieces of land mentioned were conveyed as school lands by the state. In the contract the western boundary of this farm is written as following “the meandering of the channel of the Willamette Eiver.” It is in regard to the school lands bordering on the river that the main part of the shortage is claimed. When the survey was made for plaintiff the water of the river was at a high stage. It was surveyed to the edge of the water. The western portion of the land consists of timber lands, a part of which is very productive and a part, somewhat lower and sometimes overflowed which is of less value and is called ‘ ‘ rough shore land. ’ ’
The burden of proof is on the plaintiff to prove the allegations of his complaint.
In order to rescind a contract for the sale of real estate on the grounds of fraudulent representations plain[84]*84tiff must plead and prove all the operative elements of fraud: Rolfes v. Russel, 5 Or. 400; Dunning v. Cresson, 6 Or. 241; Wheelwright v. Vanderbilt, 69 Or. 326 (138 Pac. 857).
3. The second parcel described in the contract by metes and bounds, being the school land, is referred to therein as “containing 40 acres more or less.” The evidence does not show that this tract does not consist of approximately 40 acres, if surveyed at the ordinary stage of water in the Willamette River according to the boundary given in the contract of sale, or to the ordinary high-water mark of the river: See Sun Dial Ranch v. May Land Co., 61 Or. 205 (119 Pac. 758). On the other hand, while the exact area according to such a survey is not given it is shown that it would make a great difference in the measurement if made to the stream and the evidence indicates that the land contained about 40 acres, and that the farm in the aggregate comprised approximately 147 acres. Mr. Horn-beck is an illiterate man, but does not appear to be ignorant of business matters. As an incident it appears that he made two visits to the farm in company with his son-in-law, Mr. Nelson, and Mr. Ferguson, the real estate agent. Upon the first visit, by mistake of memory or on account of error in listing the land for sale, Ferguson said there were thirty acres of hops on the farm, to which Mr. Hornbeck promptly replied, “Well, it ain’t there.” The agent did not know nor pretend to know the number of acres. Inquiry was made of Mr. Van Damm, the lessee then in charge of the place, and it was ascertained that the large hop-yard consisted of 18 acres.
It appears that in the negotiations the land immediately bordering on the water was not considered as valuable as the other land and that Hornbeck under[85]*85stood this as he would not take the island, and a deduction of only $600 was made for this thirty acres. A proposition was pending between the parties for half a day for the agent to take the 10.15 acres which Horn-beck did not want at first as commission, and that the price be reduced to $400 upon such an arrangement.
It is shown that the farm was a fair bargain at the price agreed upon. It contains about 90 acres in cultivation, an eighteen-acre bearing hopyard, and a two-acre peach orchard. There is a residence on the property of the value of about $2,000, a barn, hop-house, dryer, and other farm buildings. During the five years prior to the contract the rental share received by the Smiths ranged from $1,100 to $2,907, averaging $2,096 per annum. It will be observed that the income varied widely in different years. It seems that the hopyard which was one of the best in that part of the county was largely relied upon for profit. After the contract of sale was made the price of hops declined and with that the income of the farm decreased. Unfortunately Mr. Hornbeck was unable to make his payments as agreed, and he tardily complained of the number of acres which he had ample opportunity to ascertain and which he apparently knew approximately at the time of the deal. He speculated on the cultivation of the farm for two seasons and offers the owner no rent or compensation therefor, but seeks a return of the first payment and of one interest payment made therefor.
4, 5. A vendor desiring a rescission of a contract of sale of land must endeavor to restore the status quo and make some recompense for profits derived under the contract: Dundee Mortgage etc. Co. v. Goodman, 36 Or. 453 (60 Pac. 3); Crossen v. Murphy, 31 Or. 114 (49 Pac. 858); Clarno v. Grayson, 30 Or. 111 (46 Pac. [86]*86426); Frink v. Thomas, 20 Or. 265 (25 Pac. 717, 12 L. R. A. 239).
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Mr. Justice Bean
delivered the opinion of the court.
1. Plaintiff’s complaint as to fraudulent representations on the part of the vendors is not sustained by the evidence. The averment in regard to a want of ownership of about 12 acres of the land contracted for refers to a piece surveyed and marked upon the plat in evidence as 10.15 acres in the shape of a portion of an L extending north from the western boundary of the main tract and down along the Willamette Biver immediately west of a Mr. Coyle’s land. For several years the fences on the south and north of Coyle’s land have extended past the strip to the Willamette Biver so as to embrace the same in his inclosure. This was done apparently to economize in fencing. An attempt was made to show that Coyle had gained title to this tract by virtue of the statute of limitations. He was a witness in the case and plainly stated that he had no use for this land; that he claimed only the land conveyed to him which was a part of the Coyle Donation Land Claim which was shown not to include the 10.15 acre piece, formerly state school land. In the negotiations for the sale, the farm was referred to as consisting of 147 acres. The main contention of plaintiff is that there is a shortage in the number of acres. After the action was commenced by Smith, plaintiff procured a survey of the land to be made which was delineated upon the map exhibited as containing in the aggregate 134.17 acres. While the land is all connected the acreage is computed in four parts, one of which has already been referred to. The larger parcel which is a part of the Coyle Donation Land Claim is nearly in the form of a rectangle. It is surveyed and marked on the plat as containing 103.89 acres. In the negotiations this tract was called 107 acres. Embraced therein is a road occupying 3.49 acres which was not included in [83]*83the survey. This, if added, would make a fraction over 107 acres, the estimated area.
2. It is held in this state that the existence of a visible and known physical encumbrance upon land contracted to be conveyed, such as a public highway, is not such an encumbrance as renders the owner’s title unmarketable. It is a presumption that in fixing the purchase price the existence of such an easement was taken into consideration by the parties: Maupin on Marketable Title (2 ed.), 197; Barnum v. Lockhart, 75 Or. 528, 540 (146 Pac. 975); Wetherby v. Griswold, 75 Or. 468, 475 (147 Pac. 388); Lombard v. Kies, 79 Or. 355, 362 (154 Pac. 757). Por aught that appears in the record plaintiff knew all about the county road. On the west of the 107 acres, between that tract and the Willamette Eiver as surveyed, there are five acres. Adjoining the larger tract on the southwest is one formerly conveyed as 26 acres, which was surveyed as 15.63 acres. The first and two last pieces of land mentioned were conveyed as school lands by the state. In the contract the western boundary of this farm is written as following “the meandering of the channel of the Willamette Eiver.” It is in regard to the school lands bordering on the river that the main part of the shortage is claimed. When the survey was made for plaintiff the water of the river was at a high stage. It was surveyed to the edge of the water. The western portion of the land consists of timber lands, a part of which is very productive and a part, somewhat lower and sometimes overflowed which is of less value and is called ‘ ‘ rough shore land. ’ ’
The burden of proof is on the plaintiff to prove the allegations of his complaint.
In order to rescind a contract for the sale of real estate on the grounds of fraudulent representations plain[84]*84tiff must plead and prove all the operative elements of fraud: Rolfes v. Russel, 5 Or. 400; Dunning v. Cresson, 6 Or. 241; Wheelwright v. Vanderbilt, 69 Or. 326 (138 Pac. 857).
3. The second parcel described in the contract by metes and bounds, being the school land, is referred to therein as “containing 40 acres more or less.” The evidence does not show that this tract does not consist of approximately 40 acres, if surveyed at the ordinary stage of water in the Willamette River according to the boundary given in the contract of sale, or to the ordinary high-water mark of the river: See Sun Dial Ranch v. May Land Co., 61 Or. 205 (119 Pac. 758). On the other hand, while the exact area according to such a survey is not given it is shown that it would make a great difference in the measurement if made to the stream and the evidence indicates that the land contained about 40 acres, and that the farm in the aggregate comprised approximately 147 acres. Mr. Horn-beck is an illiterate man, but does not appear to be ignorant of business matters. As an incident it appears that he made two visits to the farm in company with his son-in-law, Mr. Nelson, and Mr. Ferguson, the real estate agent. Upon the first visit, by mistake of memory or on account of error in listing the land for sale, Ferguson said there were thirty acres of hops on the farm, to which Mr. Hornbeck promptly replied, “Well, it ain’t there.” The agent did not know nor pretend to know the number of acres. Inquiry was made of Mr. Van Damm, the lessee then in charge of the place, and it was ascertained that the large hop-yard consisted of 18 acres.
It appears that in the negotiations the land immediately bordering on the water was not considered as valuable as the other land and that Hornbeck under[85]*85stood this as he would not take the island, and a deduction of only $600 was made for this thirty acres. A proposition was pending between the parties for half a day for the agent to take the 10.15 acres which Horn-beck did not want at first as commission, and that the price be reduced to $400 upon such an arrangement.
It is shown that the farm was a fair bargain at the price agreed upon. It contains about 90 acres in cultivation, an eighteen-acre bearing hopyard, and a two-acre peach orchard. There is a residence on the property of the value of about $2,000, a barn, hop-house, dryer, and other farm buildings. During the five years prior to the contract the rental share received by the Smiths ranged from $1,100 to $2,907, averaging $2,096 per annum. It will be observed that the income varied widely in different years. It seems that the hopyard which was one of the best in that part of the county was largely relied upon for profit. After the contract of sale was made the price of hops declined and with that the income of the farm decreased. Unfortunately Mr. Hornbeck was unable to make his payments as agreed, and he tardily complained of the number of acres which he had ample opportunity to ascertain and which he apparently knew approximately at the time of the deal. He speculated on the cultivation of the farm for two seasons and offers the owner no rent or compensation therefor, but seeks a return of the first payment and of one interest payment made therefor.
4, 5. A vendor desiring a rescission of a contract of sale of land must endeavor to restore the status quo and make some recompense for profits derived under the contract: Dundee Mortgage etc. Co. v. Goodman, 36 Or. 453 (60 Pac. 3); Crossen v. Murphy, 31 Or. 114 (49 Pac. 858); Clarno v. Grayson, 30 Or. 111 (46 Pac. [86]*86426); Frink v. Thomas, 20 Or. 265 (25 Pac. 717, 12 L. R. A. 239). In order to secure a rescission of the contract of sale such a vendee must act promptly upon discovery of a discrepancy in the number of acres: McCourt v. Johns, 33 Or. 561 (53 Pac. 601); Waymire v. Shipley, 52 Or. 464 (97 Pac. 807); Hewitt v. Andrews, 69 Or. 581 (140 Pac. 437). It does not appear that the vendee was overreached or defrauded in making the contract.
In order that Hornbeck may have ample opportunity to comply with the terms of the contract and in view of the fact that upon the trial little attention was paid to the matter of notice to the plaintiff of the declaration of forfeiture by defendant, J. P. Smith, plaintiff Hornbeck should be allowed to apply to the Circuit Court within ten days from the filing in that court of the mandate herein to make payment of the amount due upon the contract of sale; and, in case of such application, he should be allowed ninety days or such time as the Circuit Court may deem reasonable under all the circumstances to make such payment. In the event of such payment or redemption the defendant, J. P. Smith, who appears to be in possession by tenant, should account to Hornbeck for the rents and profits during the time of such possession.
The decree of the trial court is affirmed with the authority for that court to make the modification upon application in accordance herewith; defendants to recover costs in this court.
Affirmed. Modification Authorized.
Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.
[87]*87(168 Pac. 419.)
Former opinion modified.
Petition for rehearing denied.
Mr. Grant Corby, for the petition.
Mr. John E. McNary, Mr. Ralph D. Moores and Mr. Everil M. Page, contra.