O'GORMAN v. Baker

347 P.2d 87, 338 P.2d 638, 219 Or. 170

• Court: Oregon Supreme Court
• Decided: November 25, 1959
• Status: Published

Opinions

CRAWFORD, J.

(Pro Tempore)

Defendants appeal from decree quieting plaintiff’s title to approximately five acres of Clackamas County land. Questions involve interpretation of the description in a deed from defendants to plaintiff, executed November 30,1944, and adverse possession. The single assignment of error is based on entry of the decree. The disputed language reads:

“* * * thence parallel with the southerly line of said road [the Keil & Beckman Road] South 65° 16' 30" E. 956.4 feet more or less, to the center of the H. Longcoy County Road # 256, thence northerly in said road to the place of beginning.”

It is plaintiff’s contention the deed calls for 1386.4 feet in its easterly extension “with the southerly line of said road * * * on the theory that H. Longcoy County Road No. 256 constitutes a boundary or a “monument” and marks the eastern end of the extended parallel line. Defendants argue the reference to an easterly extension of 956.4 feet controls. The area between these two measurements forms a triangle with its apex to the north, and encloses the five acres with which we are concerned.

The parties are in substantial agreement as to the law. Intent should be ascertained and followed; monuments and boundaries that are permanent and visible are “paramount” over inconsistent measurements but must yield to the latter when the monument or boundary is uncertain; that the actual location of the latter must be established by clear and satisfactory evidence. ORS 93.310(1) and (2); McDowell v. Carothers, 75 Or 126, 146 P 800; King v. Brigham, 19 Or 560, 25 P 150. It becomes necessary to evaluate the “monument”, H. Longcoy County Road No. 256. Admittedly there is no road known by that name. The road is, however, known as Longcoy Road, Linwood Avenue, Marguerite, Webster, and County Road No. 1648. The “curve” is “posted” as Linwood Avenue. This runs north and into Longcoy Road.

In 1925 Longcoy Road was laid out but was never used nor improved, and a portion was vacated in 1939. The parties agree that Road No. 1648 to the north of the junction of Linwood Avenue and the vacated portion of Longcoy Road is also known as Longcoy Road. When Longcoy Road was vacated in 1939 the road was reestablished to “* * * conform to the existing road.” So reestablished, it includes Linwood Avenue and Longcoy Road to the north. It is now County Road No. 1648. At the time of the deed, 1944, the only established Longcoy Road was County Road No. 1648 which ran along Linwood Avenne and Longcoy Road to the north thereof. Naomi Cook, clerk-typist in the Road Department, testified Road No. 1648 takes in the Linwood Avenue curve. Ralph Milln, Clackamas County surveyor, testified that Linwood Avenue was also known as Longcoy, Marguerite and Webster. Also, “Well, we have always considered it as the Longcoy Road, whether it’s official or not.”

Longcoy Road, also known as Linwood Avenue, is a permanent, visible and ascertained boundary, a definite, used and established road. The “vacated” Longcoy Road fails to meet any of the requirements as to monuments and boundaries, from which it follows the evidentiary rule of ORS 93.310(1) and (2) establishes the monument and boundary Linwood Avenue-Longcoy Road as paramount unless “other sufficient circumstances” impel a conclusion to the contrary. Hale v. Cottle, 21 Or 580, 28 P 901; Baker County v. Benson, 40 Or 207, 66 P 815. As stated above, on vacation of Longcoy Road the road was reestablished as County Road No. 1648. And such it was at the time of the conveyance.

Defendants’ main reliance is the eastern extension reading of 956.4 feet which coincides exactly with the center of the vacated Longcoy Road. Ground pipes correspond. Defendants argue “It is obvious that the words ‘as vacated’ were omitted from the description in the deed. * * *”

Defendant Fred C. Baker testified he did not convey the five-acre tract because it more or less “squared” up his property. Plaintiff testified she purchased 40 acres at $150 an acre and gave her check for $6,500, which sum included a small additional parcel, to which $500 of the purchase price was allotted; that defendant indicated the 40 acres he was selling while the parties were on the ground. The original tract acquired by Baker contained 140 acres, divided by a road into two pieces, 100 acres on the east side of the Longcoy Boad (also known as Linwood Avenue) and 40 acres on the west side. A realistic and normal division would suggest defendants intended to retain the east side portion while selling to plaintiff the 40 acres on the west side. The “other circumstances” are insufficient to overcome the evidence supplied by the boundary and monument but to the contrary support it. The monument is paramount.

The remaining question is that of adverse possession. Neither plaintiff nor defendants physically occupied the five-acre tract and each exercised certain acts of dominion over it; repaired fences, posted no trespassing signs, rented the property to others, rode horses over it. There is evidence that defendants pastured horses on the tract, erected a new fence in 1955, after this suit was filed, and paid all taxes. It also appears plaintiff received the rent of $80 for the 40 acres, terminated the rental agreement and re-let, cut brush, built trails, changed gates, and in 1953 filed suit for specific performance, later dismissed, involving the land in question. Plaintiff testified the taxes were paid covering the five acres without her knowledge. It thus appears the requirements of adverse possession have not been established. Keeney v. Pilot Rock Lbr. Co. et al., 206 Or 156, 291 P2d 735; Reeves v. Porta, 173 Or 147, 144 P2d 493; McCully v. Heaverne, 82 Or 650, 160 P 1166, 162 P 863.

We find no error. Affirmed.