Whitton v. Knight , 62 Or. 368 ( 1912 )

Opinion

Per Curiam.

It is apparent that if defendants’ contention that the beginning point of the survey of his tract is where a line, extending due north from the quarter section post on the south line of section 23, intersects the south line of the Jacob Johnson donation land claim be true, then plaintiff has no land whatever, and the deed tó him conveyed nothing. On the other hand, if the location of the line is according to plaintiff’s contention, each party will have all the land he bought. The contention hinges upon the location of the initial corner of defendants’ tract, which is described in their deed as a point on the south line of the Jacob Johnson D. L. C., where the line is intersected on the center line of a county road which runs due north from the quarter section post on the south line of section 23, township 1, range 2 east. There is no county road running due north from the quarter section post named. The only survey for a county road, crossing the south line of the donation land claim referred to, runs in a northwesterly direction from the quarter post above named, and then crosses a line drawn north from the quarter post, and runs in a southeasterly direction, crossing the south line of the Johnson claim about 5.8 chains east from the intersection of a line drawn north from the quarter post before mentioned.

It is claimed by defendant that the survey, as shown by the field notes, intersected the south line of the Johnson claim eight chains east of the point last mentioned. The testimony of Mr. Bonser, who made a survey for defendants several years before the hearing of this case, explains this apparent discrepancy by suggesting that a call for a course 60 degrees east is an error, and that the course is, in fact, six degrees east. This seems to correspond more closely to monuments upon the ground, and is reconcilable with the assumption of common sense on the part of the locators, as a course 60 degrees east would disregard the topography of the county and run the road unnecessarily over rough ground and into a difficult canyon; while, accepting six degrees as the proper angle, it would place the road upon good ground and practically correspond with the road as actually traveled. The fact that there is no such road, either by survey or upon the ground, puts the matter at large, so far as this call in the description is concerned, and we are left to determine where the road referred to was actually located, as it seems certain that the call for a beginning point in the center of the road was predicated upon the presumption that the road as actually traveled was a located county road, and we shall take the center of that road as the beginning point of the survey of Knight’s 20 acres.

We are satisfied that it is a point about 5.8 chains east from the point of intersection of a line prolonged due north from the quarter corner before referred to; and that the court below properly located this corner. This was recognized by the defendants as the true corner, and an iron post was set there by surveyors employed by them, until later they concluded that, by adhering to a construction of a conveyance which would place their corner due north of the quarter post on the south line of section 23, they would gain land which evidently they never bought. There was an attempt made to show that a county road was surveyed along this line; but there is no record of such survey, and the fact that it was made rests in the alleged parol declaration of a party now deceased. We are not satisfied that such a survey was ever made; and if it was made it is clear that it was never accepted.

The decree of the circuit court is affirmed, and its findings are adopted as the findings of this court.

Affirmed.