(41 Or. 117)

TROTTER v. TOWN OF STAYTON. (Supreine Court of Oregon. March 17, 1902.) BOUNDARIES-SURVEYS.

1. Plaintiff claimed strips of land as parts of his lot, and defendant town claimed the strips as being a part of the streets. The boundaries of the lots, blocks, and streets were originally specifically described by courses and distances from a particular point. Defendant, for the purposes of straightening the streets of the old town so as to conform to the subsequent additions, caused a survey to be made, and such survey took strips from plaintiff's lot for street purposes. Plaintiff subsequently caused a survey to be made. His surveyor located the particular point referred to in the original dedication, and followed the courses and distances called for, and ascertained the location of plaintiff's property, and that the lines made by him followed the calls in the original dedication. Held, that the boundary lines as fixed by the survey made by plaintiff's surveyor were correct, for that survey extended lines from the initial starting point according to the courses and distances called for in the original dedication.

2. The act of a lot owner building a sidewalk as directed by the town authorities in conformity with the survey caused to be made by them, in afterwards sawing off a part of the walk to conform to a survey caused to be made by himself, does not make his possession of a 12-inch strip bordering the lot and involved in suit unlawful, so as to prevent his maintaining suit to quiet title.

Appeal from circuit court, Marion county; R. P. Boise, Judge.

Suit by G. D. Trotter against the town of Stayton. From a decree dismissing the complaint, plaintiff appeals. Reversed.

This is a suit to quiet title to a small strip of land on the east and north sides of the north half of lots 5 and 6 in block 5, in the town of Stayton, as laid off and platted in 1871. The point of controversy is the true location of the west line of Third street and the south line of Ida street. As originally laid off the town consisted of six blocks, and the initial corner was a point 2.97 chains north of the quarter section corner between sections 10 and 15, township 9 S., range 1 W. From this point the lots, blocks, streets, and alleys were all specifically and definitely described by courses and distances, but no monuments, natural or artificial, are referred to in the survey, or, so far as the evidence shows, established on the ground. In 1900 the street lines were surveyed by Mr. Gobalet at the instance of the town council. At that time the plaintiff's property was uninclosed, and a short time thereafter, at the request of the town authorities, he put down a sidewalk to conform to the lines run by Gobalet, with the understanding, as he testifies, that it would be moved if it was not on the true street line. A few months later he and some of the other residents of the town, not being satisfied with the Gobalet survey, employed the county surveyor to reestablish and relocate the lines. And as his survey in front of plaintiff's property did not conform to that of Gobalet, the plaintiff moved his sidewalk to the line run by the

county surveyor, inclosed his property with a fence, and soon thereafter commenced this suit. The complaint alleges that the plaintiff is the owner and in possession of the north half of lots 5 and 6 in block 5 in the town of Stayton, as dedicated and shown on the recorded plat thereof, and that such property adjoins and abuts on Third street on the east and Ida street on the north; that the defendant claims an adverse interest in a strip of land off the north end thereof 12 inches wide and a strip 61⁄2 inches wide on the east side; that such claim constitutes a cloud on his title, and interferes with his peaceful and quiet possession of the property, and prays that it be required to appear and set forth the nature of its claim, and that it be decreed to be void and of no effect. The defendant answered, denying the material allegations of the complaint, except the incorporation of the defendant, and that the plaintiff is the owner of the north half of lots 5 and 6. For an affirmative defense it alleges that plaintiff is the owner of the strip in controversy, subject to the rights of the public therein under the laws of the state and such ordinances as the defendant may lawfully enact. "That prior to the month of June, 1900, the boundaries of the different streets and alleys in the said town of Stayton were not accurately known to the common council of the said city, and in pursuance of the powers vested in it, under the terms of its charter, it caused an accurate survey to be made of the location of the different lots and blocks, and also the streets and alleys therein; that all the interest which the town of Stayton claims in the strips of land, 12 inches and 61⁄2 inches in width, as described by the plaintiff in his complaint, is for the use of the public, and the same is a part of the public highway and a part of the streets of the town of Stayton." A reply was filed, denying the affirmative allegations of the answer, and upon a' trial the court found that the town council had authority to ascertain the location of the streets of the city, and that they were properly located by Gobalet's survey. The plaintiff's complaint was thereupon dismissed, and he appeals.

John A. Carson and L. K. Adams, for appellant. W. H. Homes, for respondent.

BEAN, C. J. (after stating the facts). It will be observed from the pleadings that the only question for our determination is the true location of the street lines in front of plaintiff's property. There is some discussion in the defendant's brief of the doctrine of prescription, estoppel, and acquiescence, but as no such defenses are pleaded the argument is not germane to any questions involved in the case. The answer avers that the location of the street and alley lines of the town were not known to the council, and, for the purpose of ascertaining the same, it

"caused an accurate survey to be made of the location of the different lots and blocks, and also the streets and alleys therein." The only issue therefore tendered is the accuracy of the survey made at the instance of the town authorities. If the initial point from which the town was originally surveyed and located is to be taken as the beginning point, and the survey extended therefrom according to the courses and distances called for in the dedication, it is obvious that the plaintiff must prevail.

Mr. Herrick, the county surveyor, testifies that he found the quarter section corner, and, by going 2.97 chains north, found the initial point mentioned in the dedication by Stayton and wife; that he followed the courses and distances called for, and had no difficulty in ascertaining the location of the plaintiff's property and its boundaries; that the lines as run by him, and which followed the calls in the dedication, did not conflict with any of the property in the original town, and he was satisfied they were correct. Mr. Gobalet, who made the survey for the town, says he was employed to straighten out and re-establish the street lines so as to make those in the original town conform as nearly as practicable to those of subsequent additions. In order to do so he found it necessary to establish a new base on Third street two blocks east of the original initial corner from which to make his survey, for the reason that a survey therefrom "will conflict with less property and street lines than any old or new base that may be adopted in the town of Stayton." Mr. Richardson, who was street commissioner at the time of the Gobalet survey, and who assisted him in making it, says that, "After we ran two or three lines through they did not suit. It was going to damage too much property to move these buildings. Then we went to work and measured these blocks to see how large they were clear up through this addition up to Washington street (in a new addition and four blocks north of the north line of the original town). We measured them to find out how far across it was to these lots. Then Gobalet ran a line there through that line, and it did not exactly suit. It cut too much property. * * Right here on Washington street. These lines came in about here. I would not be positive to the lap, probably seven or eight feet." He further testifies that after several measurements and remeasurements they finally found a line which interfered with very little property, and they accepted that as the base from which to extend the survey of the town and its additions; that the object the council had in making the survey was to have the streets as straight and regular as practicable, making those in the old town conform as nearly as practicable to the streets in the several additions. Mr. Davie, mayor at the time of the Gobalet survey, says that the purpose was to have the streets of the town

straightened, following the old survey as nearly as it could be done and accomplish that purpose, and that Gobalet was given instructions to that effect. It will thus be seen that Gobalet, in making his survey, was not attempting to relocate the original lines, but, as instructed by the town authorities, to straighten out the streets, so that those in the original town and the subsequent additions might conform as nearly as practicable. Under such circumstances his survey could be of no value as evidence in determining the question before the court. The ruling question is the true location of the west line of Third street and the south line of Ida street. As the plaintiff's property is described with reference to the lots and blocks as originally laid out in accordance with certain courses and distances, the point to be determined is the location of the lines so established, and no survey could be accurately based upon any other data. All subsequent surveys or resurveys are of no effect as evidence unless they tend to determine that question. Bower v. Earl, 18 Mich. 367; Hale v. Cottle, 21 Or. 580, 28 Pac. 901; King v. Brigham, 19 Or. 560, 25 Pac. 150; City of Racine v. Emerson (Wis.) 55 N. W. 177, 39 Am. St. Rep. 819; Albert v. City of Salem (Or.) 65 Pac. 1068.

The question as to whether the council had authority under its charter to relocate and re-establish the lines of the streets and alleys of the town is not involved in this case. There are neither allegations nor proof that such power, if it existed, has ever been exercised. The answer of the defendant avers that the survey by Gobalet was made because the boundaries of the different streets and alleys were not known to the council, and was intended to locate them; but there is no allegation that it was made for the purpose of changing or re-establishing the lines. In September, 1900, the council passed an ordinance providing for the employment of a competent surveyor to “survey, straighten, and establish the boundary lines of all the streets and alleys now laid out and platted in the corporate limits of the town and establish a permanent monument at the end of each boundary line and at such intermediate points" as might be deemed proper, and to "cause a correct plat or map thereof to be made" and filed in the office of the recorder; but that the survey and plat contemplated in and provided for by the ordinance was ever made is not shown. The survey of Gobalet was made some months before the passage of the ordinance, and there is no evidence that it was ever adopted or accepted by the council as a compliance with the terms of the ordinance.

It is also urged that this suit should be dismissed because the plaintiff was not in lawful possession of the property at the time it was commenced, but we think the evidence fully sustains the allegations of the complaint in this regard. The fact that the

plaintiff built a sidewalk to conform to the Gobalet survey and afterwards cut a part of it off in order to make it agree with Herrick's survey does not make his possession unlawful. He was the owner and in possession of the property when he built the sidewalk and his action in sawing off a few inches of it was no more unlawful than the building of it in the first instance. There was no trespass committed at either time; he was in possession when he built the walk, and has not been ousted or dispossessed since that time.

The decree of the court below, must be reversed, and one entered here in favor of the plaintiff.

(41 Or. 77)

BYERS v. FERGUSON. (Supreme Court of Oregon. March 17, 1902.)

REPLEVIN-VENUE-PROPERTY TAKEN UNDER ATTACHMENT-COMPLAINT-ALLEGATION OF VENUE-ABSENCE-SUIT IN JUSTICE'S COURT -DEMURRER-PLEADING OVER-EFFECT-APPEAL-RECONSIDERATION OF DEMURRER.

1. Hill's Ann. Laws, § 42, provides that actions for recovery of personal property "distrained" for any cause shall be commenced and tried in the county in which the subject of the action is situated. Held, that the statute included actions to recover property levied on in attachment, as the term distrained includes the holding of property for any purpose.

2. A complaint in replevin before a justice of the peace must, in view of Hill's Ann. Laws, 8 42, requiring replevin to be brought where the property is situated, allege not only the county in which the property was taken, but that in which it is situated.

3. Hill's Ann. Laws, § 42, requires replevin actions to be brought in the county in which the property is situated. Sess. Laws 1899, p. 109, § 12, provides that the rules of procedure in courts of record shall govern in determining the sufliciency of pleadings in justice's court. A complaint in replevin, before a justice, alleged that the property was taken in that county, but failed to allege that it was situated there when action was brought. Defendant demurred, and, on the overruling of his demurrer, pleaded over. Held, that as, applying the rules prevailing in the courts of record, it might be implied from the allegation as to the locality of the taking that the property remained within the county, the defect was such as might be cured by judgment, and was waived by defendant's pleading over after his demurrer was overruled.

4. Sess. Laws 1899, p. 109. §§ 47, 48, provide that on appeal from a justice's court the circuit court shall try the case anew, disregarding any irregularity, etc., below, and that it may allow the pleadings to be amended so as not to substantially change the issues. Held, that the trial de novo contemplated by the statutes was on issues of fact as made up in the justice's court, and that the circuit court on appeal had no jurisdiction to entertain a demurrer for a defect curable by judgment, which had already been interposed in justice's court, overruled, and the objection waived by plead ing over.

Appeal from circuit court, Polk county; George H. Burnett, Judge.

Action to recover personal property by J. A. Byers against B. I. Ferguson. From a judgment of the circuit court in favor of defendant, rendered on defendant's appeal

from a justice's judgment in favor of plaintiff, plaintiff appeals. Reversed.

This action was commenced in the justice's court of district No. 5, Polk county, Or., to recover the possession of personal property. The plaintiff alleges in the complaint that he is the owner and entitled to the possession of a gray horse, valued at $50, and a set of harness, at $20, which the defendant, in said county and state, unlawfully took from his possession, and detains the same, to his damage in the sum of $20; that he demanded of the defendant the return of the property on the ground that it was exempt from execution, but he refuses to comply therewith, and still wrongfully withholds the same. A demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action having been overruled, an answer was filed denying the material allegations of the complaint, and averring a justification of the seizure and detention by the defendant, as constable, under a writ of attachment in an action brought by C. L. Pearce against the plaintiff. A reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a judgment as prayed for in the complaint; and defendant appealed to the circuit court for said county, where the demurrer interposed in the justice's court was sustained, and the court, refusing to permit the complaint to be amended, dismissed the action, and plaintiff appeals to this court.

B. F. Bonham and Carey F. Martin, for appellant. Frank Holmes, for respondent.

MOORE, J. (after stating the facts). An action at common law to recover the possession of personal property was treated as local, and could only be maintained in the county where the property was unlawfully taken: Cobbey, Repl. § 564; Kirk v. Matlock, 12 Or. 319, 7 Pac. 322. The statute prescribing the place of trial in actions of this character is as follows: "Actions for the following causes shall be commenced and tried in the county in which the subject of the action, or some part thereof, is situated:** (2) For the recovery of personal property distrained for any cause." Hill's Ann. Laws Or. § 42. While the word "distrain" originally meant the taking of the property of another as security for the performance of some obligation (3 Bl. Comm. 231) the term "distrained," as used in the section of the statute quoted, undoubtedly signifies the holding of the personal property of another for any purpose whatever. The right to maintain an action in the nature of replevin in a given forum does not depend upon the place where the property is taken, but rests solely upon the county in which it is unlawfully held at the time the action is instituted. Such action is therefore local, and can only be prosecuted in the county where the

property is distrained; and, its situs being necessary to jurisdiction of the subject-matter, the advisability of alleging in the complaint the county in which the property is distrained is apparent. This the plaintiff failed to do, and the demurrer interposed in the justice's court challenged the sufficiency of the complaint in this respect, which being overruled, the defendant answered over; and, if the rules applicable to the trial of actions in the circuit court are to prevail in the justice's court, the averment in the complaint that the property was unlawfully taken in Polk county was cured by the judgment, from which it would be implied that such property at the time the action was instituted was detained in that county. Thus in Moorhouse v. Donaca, 14 Or. 430, 13 Pac. 112, it was held that a complaint in an action for the recovery of personal property, which alleges only a wrongful taking within the county in which the action is brought, is bad on demurrer, but in the absence of such objection the pleading is sufficient to support evidence of the situs of the property when the action was begun. Mr. Justice Thayer, in speaking of the failure of the complaint to show where the property was kept when the action was commenced, says: "If a defendant in such an action desires to raise a question of that character, he should do so by demurrer; and, if that is overruled, he may stand upon it, and not answer over, otherwise he will waive the point." It follows that, if the action was triable in the circuit court upon the issue of fact made in the justice's court, an error was committed in sustaining the demurrer. The act of February 17, 1899 (Sess. Laws 1899, p. 109), provides, in effect: That the rules of procedure in a court of record shall govern in determining the forms and sufficiency of pleadings in a justice's court. Section 12. That, when the appeal from the justice's court is perfected, the circuit court shall have jurisdiction thereof, and must proceed to hear, determine, and try the same anew, disregarding any irregularity or imperfection in matters of form which may have occurred in the justice's court. Section 47. The circuit court on appeal may allow the pleadings in the action to be amended so as not substantially to change the issues tried in the justice's court, or to introduce any new cause of action or defense. Section 48. Considering these clauses in pari materia, does the power vested in the circuit court on appeal, to try the cause anew, authorize it to determine the sufliciency of each pleading sent up, as if it had been originally filed in such court? If the complaint filed in the justice's court had failed to state facts sufficient to constitute a cause of action, the right of the circuit court on appeal to sustain a demurrer to such pleading based upon that ground is unquestioned, though such objection had not been made in the lower court. Hill's Ann. Laws

Or. 71; Bowen v. Emmerson, 3 Or. 452; Evarts v. Steger, 5 Or. 147; Ball v. Doud, 26 Or. 14, 37 Pac. 70; Hargett v. Beardsley, 33 Or. 301, 54 Pac. 203. The complaint having alleged that the defendant, in Polk county, wrongfully took the horse and harness from the plaintiff's possession, the failure to aver that the property was in the county at the time the action was commenced was not an entire want of a material averment, but a defective statement of the facts respecting the venue of the action, but sufficient to base a presumption thereon that, the property having been taken in said county, it was also held therein. Moorhouse v. Donaca, supra. The rules for determining the sufficiency of a pleading in a justice's court being the same as in a court of record, it follows that while the justice's court, in overruling the demurrer to the complaint, committed an error, such error was waived by the defendant's answering over. Olds v. Cary, 13 Or. 362, 10 Pac. 786; Drake v. Sworts, 24 Or. 201, 33 Pac. 563. So, too, when a demurrer is overruled, and the party pleads over, the demurrer is abandoned, and ceases to be a part of the record. Wells v. Applegate, 12 Or. 208, 6 Pac. 770.

As we understand the transcript, the demurrer sustained by the circuit court was the one interposed in, and overruled by, the justice's court; and, the defendant having answered over, such demurrer ceased to be a part of the record. The trial anew in the circuit court on appeal, as we understand the term, means a new trial by the introduction of original evidence upon the issue as made in the justice's court. The issue ultimately made in that court was an issue of fact, which was to be tried in the circuit court, on an appeal, not upon errors assigned, but as if such cause had never been tried. The demurrer in question interjected an issue of law which had been waived, and, this being so, the court erred in sustaining it, and for this reason the judgment is reversed, and a new trial ordered.

(41 Or. 123)

LARCH MOUNTAIN INV. CO. v. GARBADE et al.1

(Supreme Court of Oregon. March 17, 1902.) ESTOPPEL-REDEMPTION FROM EXECUTION SALE REFUSAL TO RECOGNIZE VALIDITY— EFFECT-JURISDICTION-WAIVER OF OBJEC

TIONS.

1. Land owned by plaintiff, and valued at $25,000, was sold on execution, and purchased by one of the defendants, a lumber company, for $2,046. Two days later, G., another defendant, and judgment creditor of plaintiff for $9.108, redeemed from the lumber company. Thereafter the two agreed that G., on acquir ing the legal title, should sell the land to the lumber company for $12,000; $4,000 to be paid down at the time, and refunded in case redemption was effected. Twice thereafter plain. tiff attempted to redeem, but G. and his attor neys declined in each case to recognize the validity of such attempts. Thereupon the lum1 Rehearing denied April 23, 1902.

her company, being anxious to acquire the property, opened negotiations with plaintiff for its purchase, in pursuance of which plaintiff and G. both conveyed their interests to the company for $25,000, and G. was paid the balance due him under his contract. The testimony showed conclusively that G.'s attorneys permitted plaintiff to sell his interest under the belief, induced by their acts, that G. would make no claim to the money deposited to effect redemption. Held, that G. was estopped to assert any claim to the money.

2. An objection to the jurisdiction on the ground that plaintiff's remedy is at law, and not in equity, not made in the court below, is waived.

Appeal from circuit court, Multnomah county; John B. Cleland, Judge.

Action by the Larch Mountain Investment Company against T. A. Garbade, John H. Woodward, C. C. Palmer, the Bridal Veil Lumbering Company, and William Frazier, sheriff of Multnomah county. Decree in favor of the defendants, and plaintiff appeals. Reversed.

On

This is a suit to determine the ownership of $2,271.21, deposited by the plaintiff with the sheriff of Multnomah county, for the purpose of redeeming from the defendant Garbade certain land sold under an execution on a judgment against it. The facts are that on September 28, 1898, one Gilchrist recovered a judgment against the plaintiff in the circuit court of Multnomah county for about $2,000. At the time the plaintiff was the owner of 1,200 acres of timber land in that county of the probable value of $25,000. February 13, 1899, all its interest therein was sold under an execution issued on the Gilchrist judgment, and purchased by the defendant the Bridal Veil Lumbering Company, for $2,046.67, which sale was confirmed on March 7, 1899. Two days later the defendant Garbade, as a lien creditor under a judgment recovered by him against the plaintiff on January 9, 1899, for $9,108.26, redeemed from the lumbering company. Thereafter, and on March 14th, a decree was rendered against the plaintiff in favor of the lumbering company for $15 costs in a suit against the latter. On April 25th an execution was issued thereon, and the entire 1,200 acres levied upon, and advertised for sale on June 10th. On May 10, 1899, after the issuance of the execution on the $15 decree, and before the time fixed for the sale, the defendant lumbering company and Garbade entered into a written contract by the terms of which Garbade agreed that he would pursue such legal remedies as might be available to him to acquire the legal title to the property, and sell the same to the lumbering company for $12,000, $4,000 of which was paid down at the time of the execution of the agreement, and the remainder after he should acquire title. It was stipulated in the agreement that, in case he failed to acquire title, he would refund the money received, with interest thereon at 10 per cent. per annum. It was also agreed that, in case the property

should be redeemed from Garbade, he would repay to the lumbering company such sums as may have been paid by it, with interest thereon; and in case of any redemption other than upon the Gilchrist judgment he should return any moneys received by him under the agreement, it being understood, however, that, unless "on such redemption said party of the first part [Garbade] shall receive the moneys paid by him on redemption in said Gilchrist matter, there shall be deducted from any amount so agreed to be paid by the parties of the first part the sum of $2,067.86 (being the amount paid by said party of the first part on redemption in said Gilchrist sale), or such or any part of said amount as he shall fail to receive on such redemption, together with interest thereon at the rate of ten per cent. per annum from March 9, 1899; and the said party of the second part shall thereupon be entitled to all and every benefit or advantage which may exist by reason of the judgment and sale on execution in said Gilchrist matter." Thereafter the entire property was sold under the $15 decree in favor of the lumbering company, and purchased by Garbade for $10.25, and such sale was confirmed on June 16, 1899. The plaintiff had no actual knowledge of the sale or the confirmation until the time for the redemption had expired; but a short time after the sale, and in ignorance thereof, appealed from the judgment, and gave an undertaking to stay proceedings. On January 27, 1900, the plaintiff attempted to redeem from the sale under the Gilchrist judgment by paying to the sheriff the amount of money necessary therefor, but Garbade refused to receive it, or to recognize the validity of such attempted redemption. There after, fearing that the first redemption was irregular, and perhaps invalid, the plaintiff notified Garbade that it would redeem on March 3, 1900, at which time it appeared by its attorney at the sheriff's office, and deposited with that officer $2,271.21, the amount necessary to effect such redemption. The defendants Woodward & Palmer, attorneys for Garbade, although present, refused to recognize the validity of this redemption, or to accept the money, and it remains in the custody of the sheriff. Thereafter, and while matters were in this condition, negotiations for the purchase of the property were opened between the plaintiff and the lumbering company, which finally resulted in a sale thereof to the latter for $25,000, in pursuance of which the plaintiff and defendant Garbade conveyed to the lumbering company on June 21, 1900, their respective interests in the property, and Garbade was paid the balance due him under his contract with the lumbering company of May 10, 1899. As soon as these transactions were consummated, and the money paid over to Garbade, one of his attorneys immediately appeared at the sheriff's office, and demanded the money deposited with that officer; but in the meantime the