Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-04

cItJ phdil Dt bOlu d5 upon IOTeClOSufe
in the manner provided by law, plain
tiff. to recover costs in the court be-
low; neither party to recover costs
In this court.
Bradtl vs.. Sharkey, Clackamas County
J. C. Bradtl, respondent, VS.. NJ. ].
sharkey. appellant. Appeal from the
decree Of the circuit court for Ciaek-
amas county. The Honorable ]. A.
Eakin, Judge. Argued February Is,
1911. J. z. Hedges, for respondent.
]. B. Ryan land Geo. c. Brownell, on
brief) for appellant. Mcbride, ].
Affirmed.
In January, 1885, Chestina C. Will
liams, being the owner Of a tract of
land situated In Clackamas county,
conveyed 160 acres Of the northerly
portion to H. E. Cross and N. W.
Randall, describing the same by metes
and bounds. The conveyance includ-
ed the land now in dispute, and de-
fendant comedies that Cross and Ran
dali became the owners in fee simple
OF the tract now claimed by him. In
1889 Mrs. Williams entered into a
contract with defendant for the sale
OF the remainder Of the land, and
gave him a bond for a deed, which
by mistake-failed to describe the
land or any land in Clackamas coun-
ty, and which was never recorded.
Shortly after the execution of the
bond, defendant entered upon the
tract and made substantial improve
ment near the southern boundary,
but did not fence nor improve the
disputed land or in any way occupy
1t, except that in the year 1890 or
1891 he cut some boat knees upon It,
the extent Of which cutting does not
appear. On Nov. 5, 1895, having COM
pleted his payments, he received a
deed from Mrs, Williams, purporting
to convey to him rs u acres of land
and describing 1t by metes and
bounds. The description embraces
part Of the tract Heretofore con-
veyed to Cross and Randall, the over
lap including about ten acres of land,
wholly unimproved and covered with
timber and brush. In November,
1906, plaintiff purchased the land
conveyed by Mrs Williams to Cross
and Randall, and survey made
about that time disclosed the exist
ence of the overlap in the descrip-
tion in the two deeds. Defendant
then insisted that plaintiff had more
than 100 acres of land and there is
testimony indicating that plaintiff
and defendant agreed that, If a sur
vey disclosed that fact, plaintiff was
to convey any surplus to defendant,
and, II otherwise, that defendant
would make no further claim. A
second survey showed that plaintiff
had no more than his deed called for,
and no settlement was made. In 1907
plaintiff sold the timber ON the SOU
thern portion of his place, and when
the cutting approached the overlap
defendant erected a fence of poles
ana brush part of the way across
the tract upon what he claimed as
his line, and forbade plaintiff and the
timber cutters from trespassing
thereon, but by orders from plaintiff
the fence was thrown down and the
cutting continued.
Plaintiff brought this suit to quiet
his title Defendant answered deny
ing plaintiffs title and possession. al
leging title in himself by adverse pos
session, and praying that 1t be quiet
ed as against the claims of plaintiff
Plaintiff had decree and defendant
appeals.
Mcbride j. The defendant claims
that the court should have dismissed
the suit because plaintiff failed to
prove possession of the property at
the time the suit was commenced, but
defendant has waived this require
ment of the statute by setting up af
iirmatively his own title and asking
affirmative relief; oHara v. Parker,
" Or. 1856; Moore v. Shofner. 40 Or.
4SS. In addition to this we think the
testimony shows that plaintiff and his
lessees were in actual possession and
were cutting the timber on the land
when the suit was instituted.
1t Is admitted that the legal title of
record to the disputed strip is In
plaintiff and he is entitled to prevail
unless defendant has shown 10 years
open, notorious, hostile, adverse pos
session, Defendant entered upon the
tract bought by him in 1889 but be-
yond the temporary inoursions made
upon the land in dispute in 1890 or
1891 for the purpose of cutting boat
Knees. there is no evidence that he
ever did anything which would be
notice to anybody that he claimed 1t
until shortly before this suit was be-
gun, His bond from Mrs Williams
was not recorded and II 1t had been
1t would have conveyed no notice to
,Ialo.tA,, .