Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-13

up the new fence;" and that Genger
agreed that the fence should be put
where 1t was built and it has re-
mained the boundary since 1888.
The evidence is conclusive that the
United Brethren Church was in pos
session of the property to that fence
all that time and that the fence was
put on the western boundary on the
division line between Genger's land
and that of the United Brethren
Church This proof we think was, at
least, prima facie sufficient to estab-
lish the western boundary of the
tract described in the deed.
In Turner v. Baker, Ga Mo. 29S, it
is said: THAT when proprietors of
contiguous estates, the boundaries Of
which are indefinite and unascer-
tained, agree upon the lines dividing
their estates, the calls in their re-
spective deeds, fasten themselves
upon the property to which they are
thus applied, and the title passed by
the conveyances covers and includes
every part of the property so identi-
fed as being cOmprehended within
the description" This language is
quoted with approval in Lennox V.
Hendricks II Or. 80, 81. In Egan V.
Finney, AZ Or. 500, Mr.. Chief Justice
Moore holds that a division line,
agreed upon between adjacent own
ers of real property, and acquiesced
in for a long time, is a circumstance
tending to show that 1t was built
upon the true boundary.
We think the possession of the
tract to the fence by plaintiff and his
grantors claiming under the deed,
long acquiesced in, is, as against a
stranger to the title, prima facie evil
dence, at least, that the tract de-
scribed in the complaint is within the
boundaries mentioned in the deed,
and therefore. evidence of possess
sion of the property described in the
complaint. Prior, actual possession
of the land is enough to enable the
possessor to recover it against a
mere trespasser who enters without
any title. This rule comedies that he
who secures possession of real prop
erty thereby obtains prior right
against all persons except the owner,
and is recognized in Browning V.
Lewis,99 Or. II, II; and Sommer V.
Compton, 50 Or. 173. Therefore, we
conclude that, under the description
in the complaint, plaintiff has estab-
lished prima facie case.
On the trial defendants admitted
that they removed the fence as al
legged in the complaint, and offered
some evidence to establish that the
true west line of the property de-
scribed in the deed to the trustees is
8 or 10 feet east of the old location
of the west fence. Germond, deputy
county surveyor, is the only witness
who attempts to testify upon that
matter He says that he surveyed
piece of property there for Mr.. Gal
lagher and established the northwest
corner of the Church property (Which
is the beginning point for defendants
fence). He testifiess to no facts in
regard to the survey or the data
from which he made it, This is not
competent evidence of the true loca-
ton of the corner or line but only
his opinion. A surveyors opinion as
to the result of the survey, unsup-
ported by the details of the survey,
both as to the data upon which it is
based and the manner of reaching the
result is not competent, but when he
gives the details of his work it is
question of law whether his method
was correct and a question of fact
whether his result is correct: Sea-
brook v. Coos Bay Ice Co., 40 Or.
237, 242; 54 Or. 172,
There is no evidence before us
tending IN nroVe that dafandants war-a
entitled to possession of the tract in
question. Neither were defendants
entitled to offer evidenc of title
thereof, having pleaded neither right
nor title. Therefore they were naked
traspassrs: Sec. 1923 L, c. L.; Oregon
Railroad & Nav. Co., 26 Or. ZIG.
Judgment of the lower court is af-
firmed.
Stnfa ~ nrnnnn IT, DaI II n Ts,r.