School District No. 5 v. Neder

149 P. 535, 76 Or. 552, 1915 Ore. LEXIS 314

• Court: Oregon Supreme Court
• Decided: June 22, 1915
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

The general government formerly granted the southeast quarter of the southeast quarter of section 17 in township 9 south, range 40 east of Willamette Meridian as the town site of Baker City, now the City of Baker, in the county of the same name in this state. The government title to the land lying west of this town site was acquired by J. M. Boyd. His first alienation was dated April 4, 1871, and conveyed to Baker City Academy a tract thus described:

“Commencing at the northwest corner of the town site of Baker City; thence due west five chains; thence due south eight chains; thence due east five chains; thence due north eight chains to the place of beginning containing four acres,”

—which is also designated in the deed as “situate in the southwest quarter of the southeast quarter” of section 17 above named. By regular mesne conveyances the plaintiff succeeded to this grant by that description. Boyd subsequently conveyed other lands lying immediately west of the plot sold to the academy by description “commencing at the northwest comer of the Baker City Academy Block.” Substantially this form of designation of the beginning point was used for subsequent deeds to land lying immediately west of the plaintiff’s holdings until the year 1904, when one of the defendant’s predecessors in title conveyed by warranty deed property in Baker City “commencing at a point on the south line of Center Street 362.24 feet west from the intersection of the south line of Center Street and the west line of Fourth Street,” and on the same date quitclaimed to the same grantee a tract bounded by beginning 344 feet west of the intersection of street lines already noted, and describing a strip 18.24 feet wide abutting upon the east boundary of the land included in the warranty deed. This strip is the subject of the present controversy.

It appears in evidence that in 1868 lots in blocks with streets and alleys were laid ont by authority, on the government town site of Baker City. Beginning at the east side of the 40 acres granted for that purpose the plat of these municipal subdivisions shows from east to west:

Front Street.................. 100 feet wide

Blocks 1, 8, 9, 16, with 16% feet alley in each and two lots 100 feet each 4 blocks 216% feet each........ 866 feet

First, Second, and Third Streets, 80 feet each........................ 240 feet

Fourth Street...................... 114 feet

Total......................... 1,320 feet

—or the half mile which would be the east and west dimension of the government town site if that subdivision were of exact standard size.

1, 2. The discrepancy leading to this controversy arises from the fact that the later conveyances of the defendant’s predecessors in title start with reference to the west line, or otherwise the northwest comer of the town plat instead of the original town site granted by the United States. It is claimed by the plaintiff, and we think the testimony preponderates to show, that the legal subdivision constituting the town site contains more than 40 acres, making the west boundary thereof still farther west than the west line of the town plat. In other words, the plat did not cover all the town site as granted by the United States. Beginning, as it did, at the northwest comer of the government town site instead of the same comer of the subsequently laid out plat, the deed from Boyd to the academy gave color of title to the premises included in its description. We are convinced that the preponderance of tbe testimony • is to the effect that the plaintiff and its grantors have held actual adverse possession of the strip in dispute for more than a quarter of a century which, if nothing else were shown, would constitute a sufficient showing to sustain the decision of the Circuit Court.

The decree is affirined. Affirmed.