Security Savings & Trust Co. v. Ogden , 123 Or. 370 ( 1927 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] AFFIRMED. This is an action in ejectment to determine the title and right to possession of a narrow strip of land in Multnomah County, bordering on the Willamette River near Fulton Park Addition. Demurrer to complaint was overruled and the defendant Gatt answered denying plaintiff's ownership and alleging affirmatively that he had acquired title to the land in controversy by adverse possession. Verdict was had for the plaintiff and defendant appeals from the judgment entered thereon.

The defendant challenges the sufficiency of the complaint in that the description of the land set forth therein is so indefinite and uncertain that it cannot be identified. The property is thus described:

"That certain tract situated in Section 22, Township 1 South, Range 1 East of the Willamette Meridian, and in the City of Portland, County of Multnomah and State of Oregon, to-wit: Beginning at the intersection of the East line of Macadam Road, as now laid out and established, and that certain line established by a decree rendered on November 4, 1901, by the Circuit Court of the State of Oregon for Multnomah County, in a suit wherein The Southwest Portland Real Estate Company was plaintiff and Robert Irving was defendant, and which said decree was entered on page 101 of Journal 147 of said Circuit Court; and running thence Southerly along said East Line of said Macadam Road, as now laid out and established, to an iron pipe bearing South 62 degrees 20 1/2' West and being 13.70 feet distant from another iron pipe at the Three Mile Post, and running thence North 62 degrees 20 1/2' East to the low water line of the Willamette River and running thence Northerly along said low water line to its intersection with the Easterly extension of said line established by decree of Court as aforesaid, and running thence Westerly along said line so established by decree of Court and its Easterly extension to the place of beginning."

Defendant particularly objects to the beginning point in the description. His contention in that respect is that the description in the pleading must be sufficient in itself, without reference to records or other writings. We do not understand such to be the law. The sufficiency of the description is tested by whether the sheriff, in the event the plaintiff prevailed, could identify the property and carry into execution the writ of possession. As stated in Section 327, Or. L.:

"The property shall be described with such certainty as to enable the possession thereof to be delivered if a recovery be had."

That reference in a description may be made to court records is well established: Seely v. Howard, 23 Mich. 11;Little v. Thomas, 204 Ala. 66 (85 So. 490); WashingtonRealty Co. v. Stacy Land Co., 207 Ala. 117 (92 So. 250);Clerc v. Greer, 49 W. Va. 102 (38 S.E. 485); 8 R.C.L. 1078. The maxim, "That will be considered certain which can be made certain," applies. In Bagley v. Bloch, 83 Or. 607 (163 P. 425), it is said:

"* * when in the description of land contained in a deed reference is made to a public record where an adequate delineation of the realty may be found, resort may be had thereto in order to identify the premises."

In support of the above rule also see: House v. Jackson,24 Or. 89 (32 P. 1027); Bogard v. Barhan, 52 Or. 121 (96 P. 673, 132 Am. St. Rep. 676); Dennis v. Harras, 55 Or. 379 (105 P. 246, 106 P. 789); Oregon Growers' Assn. etc. v. Lentz,107 Or. 561 (212 P. 811). It is true that these cases involve the description in deeds, but no greater certainty is required in a pleading than in a conveyance: Westervelt v. Risley et al.,108 Or. 652 (218 P. 751). Plaintiff, by its complaint, has, with a reasonable degree of certainty, apprised defendant of the particular land which it claims to own. If there was any doubt in his mind as to the beginning point of the description, it could have been removed by an examination of the court records to which reference was made. We are of opinion that the description is sufficient. A surveyor would have had no trouble in locating the land and establishing its boundaries.

Defendant recognized the above rule. He alleged in his affirmative answer that he was the owner of lot M in Fulton Park, Multnomah County, Oregon, "according to the plat of said Fulton Park of record in the office of the County Clerk of Multnomah County, Oregon." If reference to such record will suffice, it would seem to be proper practice to refer to a designated suit wherein the decree was recorded in the Circuit Court journal at a certain volume and page. The strict rule relative to descriptions of property in pleadings as announced in some of the older cases has, in modern practice, been much relaxed: Glacier MountainSilver Mining Co. v. Willis, 127 U.S. 471 (32 L. Ed. 172,8 Sup. Ct. Rep. 1214); 19 C.J. 1107.

Error is predicated in permitting witness Marshall to testify that the premises described in certain leases were included in those described in the complaint. It was shown that Marshall is a surveyor of many years' experience and had surveyed the property in question. It was unquestionably proper for him to identify the land. As stated in 9 R.C.L. 910:

"Land, when sued for in ejectment, may be identified as other property, and in such an action a civil engineer, who has surveyed the land in dispute, is competent to testify that the lands described in the complaint constitute a part of the lands described in a deed seen by the witness, and offered in evidence by the plaintiff."

Also see 22 C.J. 690; Dorlan v. Westervitch, 140 Ala. 283 (37 So. 382, 103 Am. St. Rep. 35).

To refute claim of adverse possession plaintiff offered evidence that defendant had failed to pay taxes on the land in dispute. Objection to this inquiry was properly overruled. It was possible for defendant to have acquired title without the payment of taxes, but his failure to do so was evidence worthy of much consideration by the jury. Ordinarily, a person pays taxes on that which he owns: Phipps v. Stancliff, 118 Or. 32 (245 P. 508).

Defendant testified that he went to the assessor's office for the purpose of paying taxes on the property involved, giving such officer a description of the same, but was informed it could not be located or identified. In contradiction of this testimony the field-notes of the assessor were offered in evidence purporting to show that the property was, in fact, listed on the tax rolls. We see no error in admitting this evidence. It was not offered as the basis of plaintiff's title, but to contradict the defendant.

On the merits, we are satisfied, as was the jury, that defendant has failed to establish, by a preponderance of the evidence, that he acquired title by adverse possession. Indeed, before the statutory period had expired, defendant leased the property from plaintiff's predecessor in title. This is utterly inconsistent with a claim of ownership: Minto v. Salem Water,Light Power Co., 120 Or. 202 (250 P. 722). He was not in a position thus to acquire title as against his landlord, nor could he dispute the title of the person under whom he was holding. Plaintiff's title was based on mesne conveyances dating to 1864 which contain the description of the land that competent surveyors have testified is the identical property described in the complaint.

There are other assignments of error, but we deem them of minor importance. None of them would warrant a reversal. Defendant's appeal seems to have been predicated chiefly upon the alleged insufficiency of the description set out in the complaint.

The judgment of the lower court is affirmed.

AFFIRMED.

RAND, C.J., and BEAN and BROWN, JJ., concur.