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(91 Or. 117)

county surveyor, inclosed his property with TROTTER v. TOWN OF STAYTOX. a fence, and soon thereafter commenced this (Supreme Court of Oregon. March 17, 1902.)

suit. The complaint alleges that the plainBOUNDARIES-SURVEYS.

tiff is the owner and in possession of the 1. Plaintiff claimed strips of land as parts

north balf of lots 5 and 6 in block 5 in the of his lot, and defendant town claimed the town of Stayton, as dedicated and shown on strips as being a part of the streets. The

the recorded plat thereof, and that such boundaries of the lots, blocks, and streets were originally specifically described by cours

property adjoins and abuts on Third street es and distances from a particular point. De- on the east and Ida street on the north; that fendant, for the purposes of straightening the the defendant claims an adverse interest in streets of the old town so as to conform to

a strip of land off the north end thereof 12 the subsequent additions, caused a survey to be nasle, and such survey took strips from

inches wide and a strip 612 inches wide on plaintiff's lot for street purposes. Plaintiff sub- the east side; that such claim constitutes a sequently caused a survey to be made. His

cloud on his title, and interferes with his surveyor located the particular point referred

peaceful and quiet possession of the propto in the original dedication, and followed the courses and distances called for, and ascer- erty, and prays that it be required to appear tained the location of plaintiff's property, and and set forth the nature of its claim, and that the lines made by him followed the calls

that it be decreed to be void and of no effect. in the original dedication. Held, that the boundary lines as fixed by the survey made

The defendant answered, denying the mateby plaintiff's surveyor were correct, for that rial allegations of the complaint, except the survey extended lines from the initial start

incorporation of the defendant, and that the ing point according to the courses and distances called for in the original dedication,

plaintiff is the owner of the north half of 2. The act of a lot owuer building a side

lots 5 and 6. For an affirmative defense it walk as directed by the town authorities in alleges that plaintiff is the owner of the strip conformity with the survey caused to be made

in controversy, subject to the rights of the by them, in afterwards sawing off a part of the walk to conform to a survey caused to be

public therein under the laws of the state made by himself, does not make his possession and such ordinances as the defendant may of a 12-inch strip bordering the lot and in- lawfully enact. “That prior to the month volved in suit unlawful, so as to prevent his maintaining suit to quiet title.

of June, 1900, the boundaries of the differ

ent streets and alleys in the said town of Appeal from circuit court, Marion county;

Stayton were not accurately known to the R. P. Boise, Judge.

common council of the said city, and in purSuit by G. D. Trotter against the town of

suance of the powers vested in it, under the Stayton. From a decree dismissing the com- terms of its charter, it caused an accurate surplaint, plaintiff appeals. Reversed.

vey to be made of the location of the differThis is a suit to quiet title to a small strip ent lots and blocks, and also the streets and of land on the east and north sides of the alleys therein; that all the interest which north half of lots 5 and 6 in block 5, in the the town of Stayton claims in the strips of town of Stayton, as laid off and platted in land, 12 inches and 612 inches in width, as 1871. The point of controversy is the true | described by the plaintiff in his complaint, location of the west line of Third street and is for the use of the public, and the same the south line of Ida street. As originally is a part of the public highway and a part laid off the town consisted of six blocks, and of the streets of the town of Stayton." A the initial corner was a point 2.97 chains reply was filed, denying the affirmative allenorth of the quarter section corner between gations of the answer, and upon a' trial the sections 10 and 15, township 9 S., range 1 W. | court found that the town council had auFrom this point the lots, blocks, streets, and thority to ascertain the location of the alleys were all specifically and definitely de- streets of the city, and that they were propscribed by courses and distances, but no erly located by Gobalet's survey. The plainmonuments, natural or artificial, are referred tiff's complaint was thereupon dismissed, to in the survey, or, so far as the evidence and he appeals. shows, established on the ground. In 1900

Jolin A. Carson and L. K. Adams, for apthe street lines were surveyed by Mr. Gobalet at the instance of the town council. At

pellant. W. II. Homes, for respondent. that time the plaintiff's property was uninclosed, and a short time thereafter, at the BEAN, C. J. (after stating the facts). It request of the town authorities, he put down will be observed from the pleadings that the a sidewalk to conform to the lines run by only question for our determination is the Gobalet, with the understanding, as he testi- true location of the street lines in front of fies, that it would be moved if it was not plaintiff's property. There is some discuson the true street line. A few months later sion in the defendant's brief of the doctrine he and some of the other residents of the of prescription, estoppel, and acquiescence, town, not being satisfied with the Gobalet but as no such defenses are pleaded the arsurvey, employed the county surveyor to re- gument is not germane to any questions inestablish and relocate the lines. And as his volved in the case. The answer avers that surrey in front of plaintiff's property did the location of the street and alley lines of not conform to that of Gobalet, the plaintiff the town were not known to the council, and, moved his sidewalk to the line run by the for the purpose of ascertaining the same, it "caused an accurate survey to be made of straightened, following the old survey as the location of the different lots and blocks, nearly as it could be done and accomplish and also the streets and alleys therein.” The that purpose, and that Gobalet was given only issue therefore tendered is the accuracy instructions to that effect. It will thus be of the survey made at the instance of the seen that Gobalet, in making his survey, was town authorities. If the initial point from not attempting to relocate the original lines, which the town was originally surveyed and but, as instructed by the town authorities, located is to be taken as the beginning point, to straighten out the streets, so that those and the survey extended therefrom according in the original town and the subsequent adto the courses and distances called for in ditions might conform as nearly as practithe dedication, it is obvious that the plain- cable. Under such circumstances his survey tiff must prevail.

could be of no value as evidence in deterMr. Herrick, the county surveyor, testifies mining the question before the court. The that he found the quarter section corner, ruling question is the true location of the and, by going 2.97 chains north, found the in- west line of Third street and the south line itial point mentioned in the dedication by of Ida street. As the plaintiff's property is Stayton and wife; that he followed the described with reference to the lots and courses and distances called for, and ha no blocks as originally laid out in accordance difficulty in ascertaining the location of the with certain courses and distances, the point plaintiff's property and its boundaries; that to be determined is the location of the lines the lines as run by him, and which followed so established, and no survey could be acthe calls in the dedication, did not conflict curately based upon any other data. All with any of the property in the original subsequent surveys or resurveys are of no town, and he was satisfied they were cor- effect as evidence unless they tend to deterrect. Mr. Gobalet, who made the survey for mine that question. Bower v. Earl, 18 Mich. the town, says he was employed to straight- 367; Hale v. Cottle, 21 Or. 580, 28 Pac. 901; en out and re-establish the street lines so as King v. Brigham, 19 Or. 500, 25 Pac. 150; to make those in the original town conform City of Racine v. Emerson (Wis.) 55 N. W. as nearly as practicable to those of subse- 177, 39 Am. St. Rep. 819; Albert v. City of quent additions. In order to do so he found Salem (Or.) 65 Pac. 1068. it necessary to establish a new base on The question as to whether the council Third street two blocks east of the original had authority under its charter to relocate initial corner from which to make his sur- and re-establish the lines of the streets and vey, for the reason that a survey therefrom alleys of the town is not involved in this "will conflict with less property and street case. There are neither allegations nor proof lines than any old or new base that may be that sucii power, if it existed, has ever been adopted in the town of Stayton.” Mr. Rich- exercised. The answer of the defendant ardson, who was street commissioner at the avers that the survey by Gobalet was made time of the Gobalet survey, and who assist- because the boundaries of the different ed hin in making it, says that, “After we streets and alleys were not known to the ran two or three lines through they did not council, and was intended to locate them; suit. It was going to damage too much but there is no allegation that it was made property to move these buildings. Then we for the purpose of changing or re-establishwent to work and measured these blocks to ing the lines. In September, 1900, the coun. see how large they were clear up through cil passed an ordinance providing for the this addition up to Washington street (in a employment of a competent surveyor to “surnew addition and four blocks north of the vey, straighten, and establish the boundary north line of the original town). We meas- lines of all the streets and alleys now laid ured them to find out how far across it was out and platted in the corporate limits of the to these lots. Then Gobalet ran a line there town and establish a permanent monument through that line, and it did not exactly suit. at the end of each boundary line and at such It cut too much property.

Right intermediate points" as might be deemed here on Washington street. These lines came proper, and to "cause a correct plat or map in about here. I would not be positive to thereof to be made" and filed in the office the lap, probably seven or eight feet." He of the recorder, but that the survey and further testifies that after several measure- plat contemplated in and provided for by the ments and remeasurements they finally found ordinance was ever made is not shown. The a line which interfered with very little prop- survey of Gobalet was made some months erty, and they accepted that as the base from before the passage of the ordinance, and which to extend the survey of the town and there is no evidence that it was ever adopted its additions; that the object the council or accepted by the council as a compliance had in making the survey was to have the with the terms of the ordinance. streets as straight and regular as practicable, It is also urged that this suit should be making those in the old town conform as dismissed because the plaintiff was not in nearly as practicable to the streets in the lawful possession of the property at the time several additions. Mr. Davie, mayor at the it was commenced, but we think the evitime of the Gobalet survey, says that the dence fully sustains the allegations of the purpose was to have the streets of the town complaint in this regard. The fact that the

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plaintiff built a sidewalk to conform to the from a justice's judgment in favor of plainGobalet survey and afterwards cut a part tiff, plaintiff appeals. Reversed. of it off in order to make it agree with Her

This action was commenced in the justice's rick's survey does not make his possession

court of district No. 5, Polk county, Or., to unlawful. He was the owner and in pos

recover the possession of personal property. session of the property when he built the sidewalk and his action in sawing off a few

The plaintiff alleges in the complaint that

he is the owner and entitled to the possesinches of it was no more unlawful than the building of it in the first instance. There

sion of a gray horse, valued at $50, and a

set of harness, at $20, which the defendant, was no trespass committed at either time; he was in possession when he built the walk,

in said county and state, unlawfully took and has not been ousted or dispossessed

from his possession, and detains the same, since that time.

to his damage in the sum of $20; that he de

manded of the defendant the return of the The decree of the court below.must be re

property on the ground that it was exempt versed, and one entered here in favor of the

from execution, but he refuses to comply plaintiff.

therewith, and still wrongfully withholds

the same. A demurrer to the complaint on (41 Or. 77)

the ground that it did not state facts suffiBYERS V. FERGUSON.

cient to constitute a cause of action having

been overruled, an answer was filed denying (Supreme Court of Oregon. March 17, 1902.)

the material allegations of the complaint, REPLEVIN-VENUE-PROPERTY TAKEN UNDER ATTACHMENT-COMPLAINT-ALLEGATION OF

and averring a justification of the seizure VENUE-ABSENCE-SUIT IN JUSTICE'S COURT and detention by the defendant, as con-DEJURRER--PLEADING OVER-EFFECT-APPEAL-RECONSIDERATION OF DEMURRER.

stable, under a writ of attachment in an ac1. Hill's Ann. Laws, $ 42, provides that ac- tion brought by C. L. Pearce against the tions for recovery of personal property "dis- plaintiff'. A reply having put in issue the trained" for any cause shall be commenced

allegations of new matter in the answer, a and tried in the county in which the subject of the action is situated. Held, that the statute

trial was had, resulting in a judgment as included actions to recover property levied on prayed for in the complaint; and defendant in attachment, as the term distrained includes appealed to the circuit court for said county, the holding of property for any purpose.

where the demurrer interposed in the jus2. A complaint in replevin before a justice of the peace must, in view of Hill's Ann. tice's court was sustained, and the court, reLaws, $ 42, requiring replevin to be brought fusing to permit the complaint to be amendwhere the property is situated, allege not only ed, dismissed the action, and plaintiff apthe county in which the property was taken, but that in which it is situated.

peals to this court. 3. Hill's Ann. Laws, $ 42, requires replevin

B. F. Bonham and Carey F. Martin, for actions to be bronght in the county in which the property is situated. Sess. Laws 1899, p. appellant. Frank Holmes, for respondent. 109, $ 12, provides that the rules of procedure in courts of record shall govern in determining

MOORE, J. (after stating the facts). An the suficiency of pleadings in justice's court. A complaint in replevin, before a justice, al

action at common law to recover the possesleged that the property was taken in that coun- sion of personal property was treated as loty, but failed to allege that it was situated cal, and could only be maintained in the there when action was brought. Defendant demurred, and, on the overruling of his demur

county where the property was unlawfully rer, pleaded over. Held, that as, applying the

taken, Cobbey, Repl. § 564; Kirk v. Matl ck, rules prevailing in the courts of record, it 12 Or. 319, 7 Pac, 322. The statute prescribmight be implied from the allegation as to

ing the place of trial in actions of this charthe locality of the taking that the property remained within the county. the defect was

acter is as follows: “Actions for the followsuch as might be cured by judgment, and was ing causes shall be commenced and tried in waived by defendant's pleading over after his the county in which the subject of the action, demurrer was overruled. 4. Sess. Laws 1899, p. 109, $$ 47, 48, provide

or some part thereof, is situated: that on appeal from a justice's court the cir

(2) For the recovery of personal property cuit court shall try the case anew, disregarding distrained for any cause.” Hill's Ann. Laws any irregularity, etc., below, and that it may

Or. $ 42. While the word “distrain" origallow the pleadings to be amended so as not to substantially change the issues. Held, that

inally meant the taking of the property of the trial de novo contemplated by the statutes another as security for the performance of was on issues of fact as made up in the jus- some obligation (3 BI. Comm. 231) the term tice's court, and that the circuit court on appeal had no jurisdiction to entertain a demur

"distrained,” as used in the section of the rer for a defect curable by judgment, which

statute quoted, undoubtedly signifies the had already been interposed in justice's court, holding of the personal property of another overruled, and the objection waived by plead.

for any purpose whatever. The right to ing over.

maintain an action in the nature of replevin Appeal from circuit court, Polk county; in a given forum does not depend upon the George H. Burnett, Judge.

place where the property is taken, but rests Action to recover personal property by J. solely upon the county in which it is unlaw. A. Byers against B. I. Ferguson. From a fully held at the time the action is institutJudgment of the circuit court in favor of de- ed. Such action is therefore local, and can fendant, rendered on defendant's appeal only be prosecuted in the county where the

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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 sufficiency 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 VALIDITYEFFECT-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 plaintiff attempted to redeem, but G. and his attor neys declined in each case to recognize the validity of such attempts. Thereupon the lum

Rehearing denied April 23, 1902.

her company, being anxious to acquire the should be redeemed from Garbade, he would property, opened negotiations with plaintiff for its purchase, in pursuance of which plaintiff

repay to the lumbering company such sums and G. both conveyed their interests to the

as may have been paid by it, with interest company for $25,000, and G. was paid the bal- thereon; and in case of any' redemption othapre due him under his contract. The testi- er than upon the Gilchrist judgment he mony showed conclusively that G.'s attorneys

should return any moneys received by him permitted plaintiff to sell his interest under the belief, induced by their acts, that G. would under the agreement, it being understood, make no claim to the money deposited to ef- howerer, that, unless “on such redemption fect redemption. Held, that G. was estopped

said party of the first part (Garbade] shall to assert any claim to the money. 2. An objection to the jurisdiction on the

receive the moneys paid by him on redempground that plaintiff's remedy is at law, and

tion in said Gilchrist matter, there shall be not in equity, not made in the court below, is deducted from any amount so agreed to be waired.

paid by the parties of the first part the Appeal from circuit court, Multnomah

sum of $2,067.86 (being the amount paid by county; John B. Cleland, Judge.

said party of the first part on redemption in Action by the Larch Mountain Investment

said Gilchrist sale), or such or any part Company against T. A. Garbade, John H.

of said amount as he shall fail to receive on Woodward, C. C. Palmer, the Bridal Veil

such redemption, together with interest thereLumbering Company, and William Frazier,

on at the rate of ten per cent. per annum

from March 9, 1899; and the said party of sheriff of Multnomah county. Decree in favor of the defendants, and plaintiff appeals.

the second part shall thereupon be entitled to Rerersed.

all and every benefit or advantage wbich

may exist by reason of the judgment and This is a suit to determine the ownership sale on execution in said Gilchrist matter." of $2,271.21, deposited by the plaintiff with Thereafter the entire property was sold unthe sheriff of Multnomah county, for the pur- der the $15 decree in favor of the lumbering pose of redeeming from the defendant Gar- company, and purchased by Garbade for bade certain land sold under an execution on $-10.25, and such sale was confirmed on June a judgment against it. The facts are that 16, 1899. The plaintiff had no actual knowlon September 28, 1898, one Gilchrist recov- edge of the sale or the confirmation until ered a judgment against the plaintiff in the the time for the redemption bad expired; circuit court of Multnomah county for about but a short time after the sale, and in ig$2.000. At the time the plaintiff was the norance thereof, appealed from the judgment, owner of 1,200 acres of timber land in that and gave an undertaking to stay proceedings. county of the probable value of $25,000. On On January 27, 1900, the plaintiff attempted February 13, 1899, all its interest therein was to redeem from the sale under the Gilchrist sold under an execution issued on the Gil- judgment by paying to the sheriff the amount christ judgment, and purchased by the de- of money necessary therefor, but Garbade fendant the Bridal Veil Lumbering Company, refused to receive it, or to recognize the vafor $2,046.67, which sale was confirmed on lidity of such attempted redemption. There March 7, 1899. Two days later the defend- after, fearing that the first redemption was ant Garbade, as a lien creditor under a judg- irregular, and perhaps invalid, the plaintiff ment recovered by him against the plaintiff notified Garbade that it would redeem on on January 9, 1899, for $9,108.26, redeemed March 3, 1900, at which time it appeared by from the lumbering company.

Thereafter, its attorney at the sheriff's office, and deand on March 14th, a decree was rendered posited with that officer $2,271.21, the amount against the plaintiff in favor of the lumber- necessary to effect such redemption. The deing company for $15 costs in a suit against fendants Woodward & Palmer, attorneys for the latter. On April 25th an execution was Garbade, although present, refused to recogissued thereon, and the entire 1,200 acres ler- nize the validity of this redemption, or to acied upon, and advertised for sale on June | cept the money, and it remains in the cus10th. On Vay 10, 1899, after the issuance of tody of the sheriff. Thereafter, and while the execution on the $15 decree, and before matters were in this condition, negotiations the time fixed for the sale, the defendant for the purchase of the property were opened lumbering company and Garbade entered in- between the plaintiff and the lumbering comto a written contract by the terms of which pany, which finally resulted in a sale thereGarbade agreed that he would pursue such le- of to the latter for $25,000, in pursuance gal remedies as might be available to him of which the plaintiff and defendant Garbade to acquire the legal title to the property, conveyed to the lumbering company on June and sell the same to the lumbering company 21, 1900, their respective interests in the for $12,000, $4,000 of which was paid down property, and Garbade was paid the balance at the time of the execution of the agreement, due him under his contract with the lumberand the remainder after he should acquire ing company of May 10, 1899. As soon as title. It was stipulated in the agreement these transactions were consummated, and that, in case he failed to acquire title, he the money paid over to Garbade, one of his would refund the money received, with in- attorneys immediately appeared at the sherterest thereon at 10 per cent. per annum. It iff's office, and demanded the money depositwas also agreed that, in case the property | ed with that officer; but in the meantime the

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